APPEALS from the Ohio Board of Tax Appeals
& Murray Co., L.PA., John T. Murray, and Leslie O.
Murray; Ray Robinson Law Co., L.PA., Sandra M. Kelly, and
Christopher D. Kuebler.
Yost, Attorney General, Daniel W. Fausey, and Raina Nahra
Boulos, for appellee.
T. Murray and Sandra M. Kelly for appellants.
1} Appellants in this consolidated action appeal a
decision from the Ohio Board of Tax Appeals ("BTA")
affirming the Tax Commissioner's decision denying their
applications for a refund of sales taxes they paid for
purchasing feminine hygiene products.
FACTS AND PROCEDURAL HISTORY
2} Appellants Stephanie Rowitz, McKenna Weisbarth,
Madison Weisbarth, and Jamie Weisbarth filed applications for
refunds of sales tax they paid for feminine hygiene products,
such as tampons and menstrual pads, to appellee Ohio Tax
Commissioner Jeff McClain ("Commissioner") on May
20, 2016. They included receipts for each of their purchases
with their applications.
3} Their claims for refunds were denied. In the
denial letter, the Ohio Department of Taxation found that
"[a] thorough review of R.C. 5739.02 reveals that there
is not an applicable exemption." (July 22, 2016 Letter.)
4} Appellants filed an appeal with the Commissioner
on August 9, 2016. Appellants submitted a letter from Dr.
Edwina Simmons, who purported to provide an expert opinion.
In that letter, Dr. Simmons stated "[m]enstrual products
are not a Luxury for women and [t]herefore do not qualify for
a Luxury Tax." (Attachment to Appellants' October
27, 2016 letter.) Dr. Simmons said that feminine hygiene
products are necessary to protect furniture, floors, and
clothing from blood-borne illnesses.
5} The Commissioner issued his final determination
and denied the applications on December 16, 2016. In his
decision, the Commissioner found the Department of Taxation
is "without power to exercise any jurisdiction beyond
that conferred by statute" such that he could not
address appellants' constitutional arguments. Addressing
the taxability of feminine hygiene products solely under
Ohio's statutory scheme, the Commissioner found that
feminine hygiene products do not fit within the definition of
a drug, prosthetic device, durable medical equipment, or
mobility enhancing equipment. The Commissioner determined the
products are not "drugs" because they "are not
compounds or substances." (Dec. 16, 2016 Final
Determination at 4.) They are not "durable medical
equipment" because they "are worn in or on the
body." (Dec. 16, 2016 Final Determination at 4.) They
are not "prosthetic devices" because "they do
not artificially replace a missing portion of the body or
prevent or correct a physical deformity or malfunction, or
support a weak or deformed portion of the body." (Dec.
16, 2016 Final Determination at 4-5.) Rather, the
Commissioner found that "menstruation is a normal bodily
function, 'necessary for continued reproduction and
continuation of the human species.'" (Dec. 16, 2016
Final Determination at 5, quoting unidentified documentation
provided by appellants.)
6} The Commissioner went on to find that:
[F]eminine menstrual products are not dispensed pursuant to a
prescription as required under the exemptions set forth in
R.C. 5739.02(B)(18) and (19). Hence, sales of such products
cannot be exempt in any case, regardless of whether they meet
the definitions of drugs, prosthetic devices, [or] durable
medical equipment * * *.
(Dec. 16, 2016 Final Determination at 5.)
7} Appellants appealed the Commissioner's
decision to the BTA.
8} On February 20, 2018, the BTA issued its Decision
and Order affirming the Final Determination of the
Commissioner. The BTA found that appellants failed to meet
their burden to show they are entitled to an exemption.
Specifically, "the provisions in R.C. 5739.01(FFF)
through (JJJ) relate to an exemption in R.C.
5739.02(B)(18)-(19) for items meeting such definitions that
are provided under a prescription." (Feb. 20, 2018
Decision at 2.)
9} Appellants appealed this decision. In addition to
appealing the BTA's determination that the products are
not exempt from taxation under Ohio law, appellants also
raise two constitutional arguments. First, they argue that
the taxation of feminine hygiene products violates the
federal and state Equal Protection Clauses. Second, they
argue that Ohio's sales tax law, to the extent it
requires taxation of feminine hygiene products, is preempted
by federal law.
ASSIGNMENTS OF ERROR
10} Appellants submit the following assignments of
[1.] Pursuant to the Constitutional issue raised before the
Board of Tax Appeals, but not addressed by that body on
jurisdictional grounds, the taxation of feminine hygiene
products violates the equal protection clauses of the United
States and Ohio Constitution because it discriminates against
[2.] Pursuant to the Constitutional issue raised before the
Board of Tax Appeals, but not addressed by that body on
jurisdictional grounds, the Tax Commissioner's failure to
exempt feminine hygiene products from Ohio sales tax is
preempted by the Federal Food and Drug Administration's
identification of these products as medical devices.
[3.] Contrary to the Board of Tax Appeals' conclusion,
the Tax Commissioner's failure to exempt feminine hygiene
products from Ohio sales tax is unlawful because they are
"drugs" as defined by R.C. § 5739.01(FFF),
"durable medical equipment" as defined by R.C.
§ 5739.01(HHH) and/or "prosthetic devices" as
defined by R.C. § 5739.01(JJJ).
STANDARD OF REVIEW
11} In reviewing a decision of the BTA, appellate
courts must determine whether the decision is
"reasonable and lawful." Accel, Inc. v.
Testa, 152 Ohio St.3d 262, 2017-Ohio-8798, ¶ 11,
citing Satullo v. Wilkins, 111 Ohio St.3d 399,
2006-Ohio-5856, ¶ 14; Witt Co. v. Hamilton Cty. Bd.
of Revision, 61 Ohio St.3d 155, 157 (1991); Miracit
Dev. Corp. v. Zaino, 10th Dist. No. 04AP-322,
2005-Ohio-1021, ¶ 7. The court may not "substitute
its judgment for that of the BTA on factual issues."
Miracit Dev. Corp. at ¶ 7, citing Bethesda
Healthcare, Inc. v. Wilkins, 101 Ohio St.3d 420,
2004-Ohio-1749, ¶ 18. Rather, the court must affirm the
BTAs factual findings" 'if they are supported by
reliable and probative evidence, '" and the
court" 'afford[s] deference to the BTAs
determination of the credibility of witnesses and its
weighing of the evidence subject only to an
abuse-of-discretion review on appeal.'" Accel,
Inc. at ¶ 16, quoting HealthSouth Corp. v.
Testa, 132 Ohio St.3d 55, 2012-Ohio-1871, ¶ 10;
see also Miracit Dev. Corp. at ¶ 7 ("the
BTAs factual determinations must be supported by sufficient
probative evidence"), citing Bethesda Healthcare;
Hawthorn Mellody, Inc. v. Lindley, 65 Ohio St.2d 47
12} Nonetheless, an appellate court" 'will
not hesitate to reverse a BTA decision that is based on an
incorrect legal conclusion.'" Accel, Inc.
at ¶ 11, quoting Satullo at ¶ 14; see
also Gahanna- Jefferson Local School Dist. Bd. of Edn. v.
Zaino, 93 Ohio St.3d 231, 232 (2001). "Thus, legal
conclusions are reviewed de novo." Summer Rays, Inc.
v. Testa, 10th Dist. No. 17AP-32, 2017-Ohio-7901, ¶
10, citing Terraza 8, L.L.C v. Franklin Cty. Bd. of
Revision, 150 Ohio St.3d 527, 2017-Ohio-4415, ¶ 7.
Taxation of feminine hygiene products does not violate the
Equal Protection Clauses of the United States and Ohio
Constitutions-Assignment of Error 1.
13} Appellants first argue that taxing feminine
hygiene products violates the Equal Protection Clauses of the
Ohio and United States Constitution. The BTA correctly
determined that it does not have authority to adjudicate
constitutional questions. See generally Cleveland Gear
Co. v. Limbach, 35 Ohio St.3d 229 (1988), paragraph
three of the syllabus ("The question of whether a tax
statute is unconstitutional when applied to a particular
state of facts must be raised in the notice of appeal to the
Board of Tax Appeals, and the Board of Tax Appeals must
receive evidence concerning this question if presented, even
though the Board of Tax Appeals may not declare the statute
unconstitutional."); MCI Telecommunications Corp. v.
Limbach, 68 Ohio St.3d 195 (1994); S. S. Kresge Co.
v. Bowers, 170 Ohio St. 405 (1960), syllabus ("The
Board of Tax Appeals of Ohio is an administrative agency and
is without jurisdiction to determine the constitutional
validity of a statute."). Under R.C. 5717.04,
appellants properly appealed their decision from the BTA to
this court. See also Stines v. Limbach, 61 Ohio
App.3d 461 (10th Dist.1988); Brown v. Levin, 10th
Dist. No. 11AP-349, 2012-Ohio-5768, ¶ 22.
14} The Fourteenth Amendment to the United States
Constitution provides that "[n]o State shall make or
enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws."
Similarly, Article I, Section 2 Ohio Constitution states that
"[a]ll political power is inherent in the people.
Government is instituted for their equal protection and
benefit, and they have the right to alter, reform, or abolish
the same, whenever they may deem it necessary; and no special
privileges or immunities shall ever be granted, that may not
be altered, revoked, or repealed by the General
Assembly." "Simply stated, the Equal Protection
Clauses require that individuals be treated in a manner
similar to others in like circumstances." McCrone v.
Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505,
¶ 6. "The limitations placed upon governmental
action by the federal and state Equal Protection Clauses are
essentially the same." Id. at ¶ 7.
15} In analyzing the constitutionality of a statute,
we must first recognize that "[a]ll statutes have a
strong presumption of constitutionality." Arbino v.
Johnson & Johnson, 116 Ohio St.3d 468,
2007-Ohio-6948, ¶ 25, citing Sorrell v.
Thevenir, 69 Ohio St.3d 415, 418-19 (1994); see also
State ex rel. Swetland v. Kinney, 69 Ohio St.2d 567, 574
(1982) ("[C]ourts must afford legislation a very strong
presumption in favor of constitutionality."). "It
is difficult to prove that a statute is
unconstitutional." Arbino at ¶ 25. As
such, "[b]efore a court may declare unconstitutional an
enactment of the legislative branch, 'it must appear
beyond a reasonable doubt that the legislation and
constitutional provisions are clearly
incompatible.'" Id., quoting State ex
rel. Dickman v. Defenbacher, 164 Ohio St. 142 (1955),
paragraph one of the syllabus.
16} "A party seeking constitutional review of a
statute may proceed in one of two ways: present a facial
challenge to the statute as a whole or challenge the statute
as applied to a specific set of facts." Id. at
¶ 26, citing Harrold v. Collier, 107 Ohio St.3d
44, 2005-Ohio-5334, ¶ 37. A facial challenge requires
that the party challenging the statute demonstrate that there
is "no set of circumstances" in which the statute
would be valid. Id., citing Harrold at
¶ 37; see also United States v. Salerno, 481
U.S. 739, 745 (1987). "The fact that a statute might
operate unconstitutionally under some plausible set of
circumstances is insufficient to render it wholly
invalid." Harrold at ¶ 37.
17} "An as-applied challenge, on the other
hand, alleges that application of the statute in a particular
factual context is unconstitutional." Simpkins v.
Grace Brethren Church of Del, 149 Ohio St.3d 307,
2016-Ohio-8118, ¶ 20, citing Yajnik v. Akron Dept.
of Health, Hous. Div., 101 Ohio St.3d 106,
2004-Ohio-357, ¶ 14. If a statute is declared
unconstitutional "as applied," future application
of the statute in a similar context is prohibited, "but
it does not render the statute wholly inoperative."
Id., citing Yajnik at ¶ 14. "A
party raising an as-applied constitutional challenge must
prove by clear and convincing evidence that the statute is
unconstitutional when applied to an existing set of
facts." Id. at ¶ 22, citing Groch v.
Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546.
18} Courts apply different levels of scrutiny in
determining whether a statute violates the Equal Protection
Clause: rational basis, heightened or intermediate scrutiny,
or strict scrutiny. State v. Thompson, 95 Ohio St.3d
264, 2002-Ohio-2124, ¶ 13; Clark v. Jeter, 486
U.S. 456, 461 (1988). The "first step" is
determining what standard of review is proper.
Arbino at ¶ 64.
Strict scrutiny does not apply.
19} When legislation infringes upon a fundamental
constitutional right or the rights of a suspect class, courts
review the law under a strict scrutiny test.
Thompson at ¶ 13; Arbino at ¶ 64.
"This latter level of scrutiny demands that a
discriminatory classification be narrowly tailored to serve a
compelling state interest." Thompson at ¶
13, citing United States v. Playboy Ent. Group,
Inc., 529 U.S. 803, 813 (2000); Painesville Bldg.
Dept. v. Dworken & Bernstein Co., L.PA., 89 Ohio
St.3d 564, 567 (2000). "[A] suspect class is one
'saddled with such disabilities, or subjected to such a
history of purposeful unequal treatment, or relegated to such
a position of political powerlessness as to command
extraordinary protection from the majoritarian political
process.'" Massachusetts Bd. of Retirement v.
Murgia, 427 U.S. 307, 313 (1976), quoting San
Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 28
(1973). To this end, courts have recognized suspect classes
of race and national origin. Thompson at ¶ 13;
Grutter v. Bollinger, 539 U.S. 306 (2003). They have
rejected gender and age as suspect classes. United States
v. Virginia, 518 U.S. 515, 533-34 (1996) (sex is not a
proscribed classification like race and national origin);
Murgia (age classification is not a suspect class or
a fundamental right).
20} We reject appellants' arguments that a
strict scrutiny analysis applies to the Ohio's sales tax
statutes and the taxation of feminine hygiene products.
21} Appellants' argument that the statutes
burden the exercise of their fundamental rights also fails.
Whether a right is fundamental stems first from the
constitution. Rodriguez at 33 ("It is not the
province of this Court to create substantive constitutional
rights in the name of guaranteeing equal protection of the
laws."). The court's job is to assess whether the
right at issue is "explicitly or implicitly guaranteed
by the Constitution." Id. To this end, courts
have recognized a fundamental right to vote, to marry, to
procreate, parental rights, and of privacy. See M.L.B. v.
S.L.J., 519 U.S. 102 (1996) (parental rights);
Obergefell v. Hodges, ___ U.S. ___, 135
S.Ct. 2584 (2015) (marry); Sullivan v. Benningfield,
920 F.3d 401 (6th Cir.2019) (procreate); Troxel v.
Granville, 530 U.S. 57 (2000) (parental rights). Courts
have rejected classifying things such as education, safe
housing, and public welfare assistance as fundamental rights.
See Rodriguez (education); Lindsey v.
Normet, 405 U.S. 56 (1972) (housing); Dandridge v.
Williams, 397 U.S. 471 (1970) (public assistance).
Likewise, wealth discrimination and the social importance of
the discrimination are also not adequate for invoking strict
scrutiny. See Rodriguez at ¶ 29;
22} Appellants argue that Ohio's sales tax law
infringes upon a "fundamental right or discriminates
against a protected class" and is therefore subject to
strict scrutiny. (Appellants' Brief at 15.) Appellants
did not identify a specific fundamental right in their
appellate brief, though. At the oral argument in this matter,
appellants identified two fundamental rights that they
believe are implicated here: the right to travel and the
right to work. Appellants did not provide legal support,
either by reference to a constitutional provision or by
citation to any legal authority, for the argument that these
rights are fundamental, and they did not develop any argument
explaining how Ohio's retail sales tax statutes burden
the right to work or travel. Nonetheless, appellants suggest
that menstruation affects a woman's ability to work and
travel, and a taxation on feminine hygiene products imposes a
burden on the exercise of these two fundamental rights.
23} Appellants' failure to develop their
argument that the Ohio sales tax statutes violate one or more
of their fundamental rights would generally result in the
waiver of such arguments. See Gen. Start Natl Ins. Co. v.
Administratia Asigurarilor De Stat, 289 F.3d 434, 441
(6th Cir.2002); Lycourt-Donovan v. Columbia Gas of
Ohio, 152 Ohio St.3d 73, 2017-Ohio-7566; United
States v. Hook, 471 F.3d 766, 775 (7th Cir.2006)
("perfunctory and undeveloped arguments, and arguments
that are unsupported by pertinent authority, are
waived"); see generally Roby v. Commr. of Social
Sec, 48 Fed.Appx. 532, 536 (6th Cir.2002) (considering
equal protection claim and noting that the failure to develop
an argument generally results in its waiver). As the Sixth
Circuit has recognized:
"Issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived. It is not sufficient for a party to mention a
possible argument in the most skeletal way, leaving the court
to put flesh on its bones."
United States v. Stewart, 628 F.3d 246, 256 (6th
Cir.2010), quoting McPherson v. Kelsey, 125 F.3d
989, 995-96 (6th Cir.1997). Nonetheless, in the interest of
fully analyzing the standard to apply to appellants'
constitutional challenge, we address appellants'
fundamental right argument.
24} Numerous courts have found that "[t]he
right to 'make a living' is not a 'fundamental
right,' for either equal protection or substantive due
process purposes." Medeiros v. Vincent, 431
F.3d 25, 32 (1st Cir.2005), abrogated in part on other
grounds by Bond v. United States, 564 U.S. 211 (2011);
see also Murgia (citation omitted.) ("we have
expressly stated that a standard less than strict scrutiny
'has consistently been applied to state legislation
restricting the availability of employment
opportunities.' "); Doe v. Nebraska, 734
F.Supp.2d 882, 926 (N.D.Neb.2010); New York State
Trawlers Assn. v. Jorling, 16 F.3d 1303, 1309-12 (2d
Cir.1994); Hull v. Rose, Schmidt, Hasley & Disalle,
P.C., 700 A.2d 996 (Pa.1997). Appellants have not
provided support for their statement that the right to work
is a fundamental right, and the court declines to find one on
its own. Appellants' argument for a strict scrutiny
analysis on this basis, therefore, fails.
25} The right to interstate travel has been
recognized as a fundamental right. See Shapiro v.
Thompson, 394 U.S. 618, 631 (1969), abrogated on
other grounds by Edelman v. Jordan, 415 U.S. 651 (1974);
Jones v. Helms, 452 U.S. 412, 417-18 (1981);
League of United Latin Am. Citizens v. Bredesen, 500
F.3d 523, 535 (6th Cir.2007). Although the United States
Supreme Court has not recognized a fundamental right to
intrastate travel, Ohio has. See State v.
Burnett, 93 Ohio St.3d 419, 427-28 (2001). But even when
the right to travel is implicated, the application of a
strict scrutiny analysis is not automatic.
26} "[N]ot every law which makes a right more
difficult to exercise is, ipso facto, an
infringement of that right." Planned Parenthood v.
Casey, 505 U.S. 833, 873 (1992). A fundamental right
will only be implicated by government action that, at a
minimum, "significantly interferes with the exercise of
a fundamental right." Zablocki v. Redhail, 434
U.S. 374, 388 (1978); see also Beydoun v. Sessions,
871 F.3d 459, 467 (6th Cir.2017), citing Zablocki.
"The fact that a law which serves a valid purpose, one
not designed to strike at the right itself, has the
incidental effect of making it more difficult or more
expensive" is not enough to invalidate the legislation.
Planned Parenthood at 874 (addressing abortion
restrictions under the due process clause). If the regulation
"merely has an incidental effect" on the exercise
of a fundamental right, strict scrutiny does not apply.
Schlittler v. State, 488 S.W.3d 306, 317
(Tex.App.2016) (strict scrutiny not triggered on the
basis of disparate treatment where the statute only
"incidentally" burdened the parent-child
relationship for some incarcerated sex offenders); see
also Johnson v. Rodriguez, 110 F.3d 299, 316 (5th
Cir.1997) ("Thus, any burden which customary
consideration in the parole process of litigation activity
generally may impose upon a 'fundamental right' is
'incidental' and does not warrant strict scrutiny
under an equal protection analysis."), citing
Planned Parenthood, and Younger v. Harris,
401 U.S. 37, 49-52 (1971). In these situations, equal
protection requires only a "conceivable rational
relationship." Johnson at 306, citing
Stern at 1054. It is only when there exists a real
and appreciable impact on, or a significant interference with
the exercise of the fundamental right that the strict
scrutiny doctrine will be applied. Murgia at 388.
27} Applying this concept to the right to travel,
courts have explained that a state law "implicates the
right to travel when it actually deters travel, when impeding
travel is its primary objective, or when it uses a
classification that serves to penalize the exercise of the
right." Bredesen at 535, citing Atty. Gen.
of New York v. Soto-Lopez, 476 U.S. 898, 903 (1986).
"Burdens that are incidental or negligible are
'insufficient to implicate [the] denial of the right to
travel.'" Beydown at 468, quoting
Bredesen at 535; see also Pollack v. Duff,
793 F.3d 34, 45 (D.C. Cir.2015) (if the law's effect on
the right to travel is negligible, strict scrutiny does not
apply); Matsuo v. United States, 586 F.3d 1180, 1183
(9th Cir.2009); Tobe v. Santa Ana, 9 Cal.4th 1069,
1100-01 (1995) (there must be a "direct restriction of
the right to travel").
28} Appellants have not made any arguments
explaining how Ohio's sales tax statutes
"significantly interfere" with their right to
travel. The statutes impose a tax on the purchase of all
retail sales, including feminine hygiene products, without
regard to travel implications. There is nothing in the record
to suggest that the imposition of the tax "actually
deters travel," has as its "primary objective"
the goal to impede travel, or uses any classification to
serve to penalize exercising the right to travel. Without any
support for the proposition that the tax burdens travel in
any way that is not negligible, we decline to apply strict
scrutiny on this basis.
29} Because gender classifications are not subject
to strict scrutiny, there is no fundamental right to work,
and there is no evidence that a tax on feminine hygiene
products significantly burdens the right to travel, there is
no basis upon ...