Sep 1, 2020
Ohio is slowly reopening. Downtown, businesses showcase signs that proudly announce “OPEN” in bright neon letters. But not all businesses look the same as they did pre-COVID-19. OTR restaurants expanded outdoor seating and emphasize safe eating.1
Reopening can be a struggle for businesses. Businesses should be aware of the inherent risks involved with opening and take the utmost care to ensure employee and customer safety. Businesses should also be aware of new regulations governing Ohio’s reopening to avoid or minimize government intrusion, investigation, and prosecution for running afoul of the post-COVID-19 legal landscape.
A New Normal: Responsible RestartOhio Regulations
On April 27, 2020, Governor Mike DeWine announced Ohio’s “Responsible RestartOhio” campaign.2 The campaign focuses on guiding businesses—from restaurants to daycares—on safely reopening their doors to customers based on each business’ specific business sector.3
The Ohio Department of Health (“ODH”) promulgated the RestartOhio Regulations.4 Therefore, the RestartOhio Regulations carry the force of an order by the ODH.5 These regulations provide advisory best practices, but also include mandatory practices that certain businesses must adopt.6
RestartOhio focuses on compliance, using an “all-access” investigation approach to further that goal.
First, law enforcement enforces the RestartOhio Regulations. Under Ohio law, “police officers [and] sheriffs…shall enforce quarantine and isolation orders, and the rules” adopted by the ODH and may be the primary method of ensuring compliance with the RestartOhio Regulations.7
Second, with respect to certain businesses,8 Governor DeWine created an enforcement team under Ohio’s Department of Public Safety’s Ohio Investigative Unit (“OIU”) to enforce the regulations.9 “OIU agents are fully-sworn plainclothes peace officers responsible for enforcing Ohio’s alcohol, tobacco and food stamp fraud laws.”10 Because of the OIU’s undercover approach, a business within its oversight may never even know that it was investigated; an OIU officer could enter a restaurant, observe compliant operations, and leave without a trace.
Third, citizens are encouraged to report non-compliance to the ODH. While the ODH oversees its orders and regulations, it employs no investigators. Instead, it relies on citizens’ and law enforcement agencies’ complaints. Thus, a business not complying with the RestartOhio Regulations could be reported to the ODH at any time by anyone.11
Amicable Resolutions and Mitigating Government Intrusion
First-time offenders are unlikely to suffer harsh sanctions, but criminal prosecutions are possible.
The ODH prefers to call or visit a business to investigate alleged non-compliance and advise it of best practices instead of penalizing it. Therefore, a business’ first sign of governmental scrutiny could be interacting with the ODH.12
Businesses within the OIU’s oversight could face steeper penalties.13 The OIU regularly hands out citations for violations of Ohio liquor laws14 and for “improper conduct” occurring at a bar or restaurant.15 Such “improper conduct” may include violations of the RestartOhio Regulations.16 Cited businesses may be prosecuted17 or become embroiled in “show cause” hearings to explain why their liquor license should not be revoked by the Ohio Liquor Control Commission.18
Governor DeWine tasked the ODH, the OIU, and local law enforcement with referring habitual offenders for criminal prosecution. Defiance of a lawful order by the ODH is a Second-Degree Misdemeanor which carries a maximum fine of $750 per violation.19 An OIU agent walking into a crowded, habitually-offending bar could document ten violations of employees not wearing face coverings and refer the matter to a prosecutor. That bar could suffer a $7,500 penalty from a single OIU visit.
Ohio businesses operating in a post-COVID-19 world must be aware of the RestartOhio Regulations. Law enforcement and citizens will be watching for violations. Businesses must implement at least the minimum RestartOhio Regulations and should consider implementing optional best practices as well. Adopting these best practices will further an argument that any violation was a one-time mistake rather than an example of habitual non-compliance and will help each business do its part to protect its community.
Ben Sandlin is an associate at Thompson Hine, LLP’s Cincinnati office in the Business Litigation Department and a member of the White Collar Criminal Defense, Internal Investigations & Government Enforcement group. Ben advocates for clients involved in prosecution and government investigations, and litigates civil matters concerning consumer protection and commercial disputes. Ben is an alumnus of Miami University and the University of Cincinnati College of Law. Ben may be reached at Ben.Sandlin@ThompsonHine.com or on Twitter @BenG_Sandlin.
John Mitchell is a partner in Thompson Hine, LLP’s White Collar Criminal Defense, Internal Investigations & Government Enforcement group. John focuses his practice on all areas of a white-collar criminal defense from grand jury subpoenas to trial. John has represented clients throughout the United States. John is an alumnus of the Ohio State University and Capital University Law School. John may be reached at John.Mitchell@ThompsonHine.com.
1 See 12 Additional Downtown, OTR Restaurants Adding Additional Outdoor Dining Space, https://www.wlwt.com/article/12-additional-downtown-otr-restaurants-adding-additional-outdoor-dining-space/32643832
2 See Governor DeWine Announces Details of Ohio’s Responsible RestartOhio Plan, https://governor.ohio.gov/wps/portal/gov/governor/media/news-and-media/covid19-update-april-27
3 The campaign may be found at https://coronavirus.ohio.gov/wps/portal/gov/covid-19/responsible-restart-ohio/
4 See, i.e., Director’s Dine Safe Ohio Order, June 5, 2020 (https://coronavirus.ohio.gov/static/publicorders/dao-Reopens-Restaurants-Bars.pdf). This is an example of the RestartOhio Regulations governing bars and restaurants. Other sectors of business have their own RestartOhio Regulations which are located online at the ODH’s website and the Governor’s website.
5 See Director’s Stay Safe Ohio Order, April 30, 2020 (https://coronavirus.ohio.gov/static/publicorders/Directors-Stay-Safe-Ohio-Order.pdf); see also R.C. § 3701.13; see also R.C. § 3701.56.
6 See, i.e., Restaurants, Bars, and Banquet & Catering Facilities/Services, https://coronavirus.ohio.gov/static/responsible/Restaurants-and-Bars.pdf
7 See R.C. 3701.56
8 These businesses include all businesses that either possess an Ohio liquor license, accept food stamps, or sell tobacco products.
9 See https://www.fox19.com/2020/05/18/watch-live-gov-dewine-gives-update-states-coronavirus-response/
11 See https://www.cincinnati-oh.gov/health/covid-19/business-compliance/ (Cincinnati’s local Department of Health’s citizen’s complaint resource)
12 See Scant Follow-Through on COVID Complaints; Authorities Rely Mostly on Voluntary Compliance, Cinn. Enq. June 2, 2020, p. A1
13 Twelve bars and restaurants in Cleveland recently saw the OIU in action when the OIU cited bars and restaurants, including Put-in-Bay, for violations of the RestartOhio Regulations. See https://www.wkyc.com/mobile/article/news/health/coronavirus/12-businesses-cited-for-not-enforcing-coronavirus-safety-guidelines/95-c7d2e311-c355-4fa9-a961-7307d87f9bd8
14 See R.C. §§4301 et seq. and 4303 et seq.
15 See O.A.C. § 4301:1-1-52 (prohibiting, inter alia, actions which “harass, threaten or physically harm another person.”
16 OIU agents have cited at least two bars with “improper conduct” for violations of the RestartOhio Regulations. See https://www.13abc.com/content/news/Investigators-issue-citations-for-restaurantbar-COVID-violations-570778821.html.
17 See R.C. § 4301.10(A)(4) (the Ohio Division of Liquor Control shall “[e]nforce the administrative provisions of [R.C. §§ 4301 et seq. and 4303 et seq.], and the rules and orders of the [L]iquor [C]ontrol [C]omission and the superintendent relating to the manufacture, importation, transportation, distribution, and sale of beer or intoxicating liquor. The attorney general, [and] any prosecuting attorney . . . shall, at the request of the division of liquor control or the department of public safety, prosecute any person charged with a violation of any provision in those chapters . . . .”).
18 See R.C. § 4301.252 (options to pay forfeitures in lieu of suspending operations of liquor sales in certain circumstances); see also O.A.C. § 4301:1-1-65 (proceedings before the Liquor Commission).
19 See R.C. 3701.571.