September October CBA Report

O hio is slowly reopening. Downtown, businesses show- case 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. Busi- nesses should also be aware of new regulations governing Ohio’s reopening to avoid or minimize government intrusion, investi- gation, and prosecution for running afoul of the post-COVID-19 legal landscape. A New Normal: Responsible Restar tOhio 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 All-Access Investigation 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 regula- Regulations on Reopening Avoiding Government Scrutiny and Mitigating Potential Prosecution Risk tions. 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 laws 14 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 prose- cuted 17 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 prose- cution. Defiance of a lawful order by the ODH is a Second-Degree Misdemeanor which carries a maximum fine of $750 per viola- tion. 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. By Ben Sandlin and John Mitchell 16 l September/October 2020 CBA REPORT Feature Article