Economic development is often associated with TIFs, CRAs, JEDDs, and the alphabet soup of other acronyms used by local governments to convince developers to choose their community as the site for new development. But establishing intuitive, user-friendly land use and development policies and procedures is an equally important and often overlooked method of attracting and retaining development. Local governments should consider adopting some of the following best practices:
Well-trained planning and zoning staff and planning commission
Planning and zoning staff may not always have the training in land use planning and zoning to effectively and efficiently serve as the community’s point person when a developer knocks on the door. Also, planning commissions are often made up of civic-minded residents, but those citizens rarely have backgrounds in real estate, law, or another planning-related profession. Planning staff, planning commissions and other boards and commissions should be well-trained and able to efficiently guide the developer through the approval process.
Often, communities utilize a single form for variances, rezoning, building permits, and a variety of other purposes. Although building and planning staff may understand the form, forms should be intuitive to developers and property owners.
Zoning code provisions that provide a degree of certainty
It is no secret that developers like certainty. Developers do not like when they cannot determine whether the plan would be permitted under a zoning code and other ordinances, or when the process required to obtain approval is unclear. If that happens, then developers may choose an alternative, lower risk community that provides more certainty in their ordinances.
For more information on policies and procedures that encourage development, Jessica Trivisonno and her colleague, Todd Hunt are presenting “Encouraging Economic Development Through Planning” at the Northeast Ohio Planning and Zoning Workshop on June 8, 2018 in Conneaut, Ohio. The workshop is open and sessions are designed for local officials, planning commission and board of zoning appeals members, community development professionals, professional planners, attorneys, architects and other interested citizens. Register here.
On Tuesday, May 2, 2018, Ohio Governor John Kasich signed Substitute House Bill 478, amending Ohio’s right-of-way statute to pave the way for small cell installations associated with increased demand for high-speed, high-capacity wireless communications. The wireless industry will install millions of small cells nationwide as it moves to deploy 5G technology. Sub. H.B. 478 was passed by the Ohio Senate on April 11, 2018 and the House concurred in the Senate’s version the same day.andnbsp;
Based upon the Governor’s signature on May 2, 2018, Sub. H.B. 478 will take effect on July 31, 2018 (90 days later).
Sub. H.B. 478 makes substantial and wide-ranging modifications to the law governing small cell wireless installations in the municipal right
of way. Cities and villages should be mindful of the July 31, 2018 effective date as they prepare for the applications that are to be expected. For an overview of what to expect and how to prepare, please see our article of April 18, 2018, “Ohio Legislature Passes Small Cell Amendments.”
Substitute House Bill 478 (“Sub. H.B. 478”), which was passed on April, 11, amends Ohio’s law regarding small cell facilities in the right-of-way. Such facilities will be used to support 5G cell phone technology.andnbsp; We have prepared a detailed chart, comparing the existing provisions of Chapter 4939 (as amended by Senate Bill 331) and the provisions of Sub. H.B. 478.
Sub. H.B. 478 makes a number of noteworthy changes to the law, including the following:
- Allows a municipality to adopt and apply reasonable, written design guidelines.
- Increases the amount of time to review an application for installation of a new pole in the right-of-way from 90 days to 120 days.
- Provides that a municipality may determine the application fee (up to $250) and annual rental fee (up to $200) in its sole discretion, and also allows a municipality to adjust its fees for inflation.andnbsp;andnbsp;andnbsp;andnbsp;
- Limits the number of applications that can be submitted together
(consolidated) to 30 and requires that consolidated applications be
substantially similar to one another.
- Lowers the maximum permitted height of new poles from 50 feet down to 40 feet, generally; and allows a restriction as low as 35 feet when there are other height restrictions in the area. But note that in the absence of local regulation, height limits can be exceeded.
- Requires that operators timely act when a permit is issued and allows a municipality to require that an operator remove abandoned facilities.
The legislation is awaiting Governor Kasich’s signature and will go into effect 90 days after he signs it.
Municipalities should start preparing small cell legislation and design guidelines as soon as possible so that they are ready when the new law takes effect. Legislation should address issues including application requirements and procedures, fees, height limitations for new wireless support structures, and specific regulations regarding the design of small cell facilities. Small cell design guidelines should be tailored to the needs of the community.
Municipalities with a comprehensive right-of-way ordinance should review the ordinance in light of the new law. Communities should also consider creating application forms for small cells as well as training personnel on evaluating small cell applications in compliance with the new law.
Your community can simplify the process of addressing small cells by developing appropriate legislation, forms and guidelines before you receive a small cell application under the new law. Taking a proactive approach will protect your community and diminish the burden on your building, planning, service, engineering and legal personnel when applications are received.
Are you having difficulty finding a liquor permit to transfer in your city, village or township? It’s a common problem. Oftentimes, all of the permits are taken because the liquor permit quota in a particular area is maxed out.
However, there is another way to get a liquor permit into a municipality when all of the quota permits are taken and no special permit is available. Ohio has long had a way to transfer a permit from one community to another, and the process has recently been made easier. It is known as the “TREX.”
The Economic Development Transfer (“TREX”) is the transfer of a liquor permit into an economic development project. Spelled out in Ohio Revised Code §4303.29(B)(2)(b)(i), TREX is intended to help those areas of the state which have an over-issuance of permits by allowing transfers of permits from other areas of the state. Put differently, a liquor permit can be bought from a seller in one area of the state and transferred to the buyer’s area, regardless of municipal boundaries.
Of course, to break the quota rules in this fashion, the state requires that the municipality to where the permit will be transferred endorse the transfer in writing. (Both businesses seeking to obtain a permit through the TREX system and municipalities should be aware that even if the political subdivision signs the TREX form, it can still object to the transfer under O.R.C. §4303.26). The buyer is also required to demonstrate that the project is an economic development project.
According to O.R.C. §4303.29(B)(2)(b)(ii), the factors that may be used to determine whether the project is an economic development project include:
- the amount of financial investment in the project
- the number of jobs that will be created by the project
- projected earnings
- projected tax revenues for the political subdivisions in which the project will be located
- architectural certification of the plans and the cost of the project
It is the buyer’s responsibility to locate and purchase the permit, and the Division of Liquor Control recommends that people consult with attorneys for that process. Experienced attorneys who handle Ohio liquor law matters can typically locate a permit for purchase in mere days.
Upon filing of the TREX application, the superintendent of the liquor control will determine if the existing or proposed business that is seeking a TREX qualifies as an economic development project. If so, the transfer will be approved and proceed.
A permit that has been “TREXed” can be subsequently transferred to a different owner at the same location. In addition, it can be transferred to the same owner or a different owner at another location, provided that new location meets the economic development project criteria.
John Neal is an attorney at Walter | Haverfield who focuses his practice on state and federal liquor permit licensing as well as the licensing of Ohio’s new medical marijuana industry. He can be reached at email@example.com or at 216-619-7866.
Although liquor permits in Ohio are issued by the state, a municipality has the right to request a hearing on the renewal of any permit within its borders. It can do so by objecting to the permit’s renewal as provided in Ohio Revised Code §4303.271. All liquor permits in Ohio, for the sale of beer and wine for carry-out (“C” permits), and for the sale of beer, wine and spirituous liquor for on-site consumption (“D” permits), are issued by the Ohio Division of Liquor Control. Each political subdivision (municipality, township or county) is assigned a specific number of permits that can be issued within the boundaries of that subdivision. This number is known as a quota. The permit quota is based on the population of the political subdivision at the last census.
ANNUAL RENEWAL REQUIRED
All liquor permits must be renewed every year. The state is separated into three regions for liquor permit renewal purposes. Permits in the northeast region (which includes Cuyahoga and its local counties) renew on October 1 of each year. Permits in the central eastern region (which includes Franklin County) renew on February 1 each year. And permits in the western region renew on June 1 each year. Permit holders are required to file a renewal application and fee each year.
HOW TO OBJECT
The legislative authority of the political subdivision objects to the renewal of a permit within its boundaries by filing a separate resolution for each permit with the Division of Liquor Control. That resolution must specify the reasons for the objection. These objections must be filed at least 30 days prior to the expiration of the permit and must be accompanied by a statement by the chief legal officer of the political subdivision that the objection is based on substantial legal grounds within the meaning and intent of O.R.C. §4303.292. Examples of legal grounds include but are not limited to: the owner has been convicted of a crime that relates to his/her fitness to operate a liquor permit establishment; the building where the permit is located has been declared a nuisance or does not conform to the building, health or safety requirements of the municipality; or the permit premises will cause substantial interference with the public decency, sobriety, peace or good order of the neighborhood.
HEARING BEFORE THE DIVISION OF LIQUOR CONTROL
By objecting to the renewal of a permit, the legislative authority is requesting a hearing. It then must establish grounds upon which the renewal of the permit should be denied. The permit holder and the objecting legislative authority are parties to the hearing, which would be held in the county seat of the county in which the permit premise is located. These hearings are generally done via videoconferencing with a hearing officer from the Division of Liquor Control. The legislative authority must be represented by counsel. The Division of Liquor Control may deny the renewal of the permit for the reasons set forth in O.R.C. §4303.292.
Either party that participated in a renewal objection hearing can appeal the decision to the Ohio Liquor Control Commission. The hearing before the commission takes place in Columbus. If the appeal was taken by the permit holder, the attorney general’s office represents the legislative authority (but the legislative authority’s attorney is required to attend the hearing). If the appeal is taken by the legislative authority, the attorney for the legislative authority presents the case to the commission.
Either party can then appeal to the Franklin County Court of Common Pleas and then to the Tenth District Court of Appeals. In theory, a party could appeal to the Ohio Supreme Court but because all liquor matters are now heard by the Tenth District Court of Appeals, there is never a conflict in the case law between courts. So it is very unlikely that the Supreme Court would take a case unless it is a novel issue.
When a municipality has a bar or carry-out that is a problem, and the municipality is notified of the renewal deadline for liquor permits within its boundaries, it is worth evaluating whether grounds exist to object to the renewal of the permit. If so, council should pass the necessary resolution, the chief legal officer should attach the required statement, and he/she should file this information with the Division of Liquor Control to start the objection process. Eventually, the municipality may be able to get rid of its punch palace.1
1 The municipality may also want to consider using ORC Chapter 3767 (known as Ohio’s “Padlock Law”) and have the local common pleas court declare the property as a nuisance.
Susan Bungard is an attorney with Walter | Haverfield’s Public Law group. She can be reached at 216.928.2917 or firstname.lastname@example.org.
It’s a hot topic that is the focus of many attorney commercials and frequently makes news headlines across the state. They’re called firefighter cancer claims, and they can have significant financial impact for victims, attorneys and employers.
Earlier this year, state legislators amended the Ohio workers’ compensation law to allow current and retired firefighters suffering from various cancers to collect compensation benefits under certain circumstances. But there are exceptions to the rule, and municipalities, villages, townships and other employers of paid or volunteer firefighters should understand how the amendment affects them.
To be eligible for benefits, a firefighter must have been:
- Working hazardous duty for at least six years. Defined as “duty performed under circumstances in which an accident could result in serious injury or death.”
- Exposed to a known carcinogen while on duty.
- Diagnosed with cancer by an appropriate medical provider.
- First diagnosed, first received treatment, or first quit working due to the cancer on or after April 6, 2017.
The following circumstances can lead to the denial of benefits:
- The firefighter is 70 years old or older.
- The firefighter has not worked in the profession for more than 20 years.
- The firefighter used or was exposed to cigarettes, tobacco products, or other conditions that would increase his/her risk of cancer.
- The firefighter was not exposed to known and specific carcinogens.
- The firefighter developed cancer before becoming a firefighter.
If the employer disputes the firefighter’s claim, the firefighter must prove that being
exposed to cancer-causing agents while working hazardous duty as a firefighter caused the diagnosis of cancer. Yet, a cancer diagnosis is not enough to prove a work-related claim. The employer may seek to demonstrate that non-work-related factors caused the firefighter’s cancer thereby resulting in the denial of the claim.
Employers should be cautious and use due diligence before certifying a firefighter cancer claim. If you have questions regarding cancer claims, contact Walter | Haverfield to determine whether it is causally related to the firefighter’s exposure to known and specific carcinogens while working hazardous duty for at least six years.
With campaigning complete, ballots cast, and votes provisionally tabulated, it is time for campaign committees of local candidates to take down the yard signs and complete their post-election campaign finance reports.
Generally, Ohio law requires the campaign committees for candidates whose name appeared on the ballot to file a post-election campaign finance report no later than the close of business on the thirty-eighth day (38) after the general election. R.C. 3517.10(A)(2). This year, that deadline is 4:00 p.m. on December 15, 2017. It is important to note that the report must be received by the board of elections in the county where the elected position was sought by the close of business on December 15. Otherwise, the post-election campaign finance report is late. See 3517.11(A)(2)(a).
Failure to timely file a post-election campaign finance report may result in a referral to the Ohio Elections Commission, and may expose the candidate and/or the treasurer of the campaign committee to monetary penalties.
The post-election campaign report must account for all campaign contributions and expenditures properly made from the close of business on the last day reflected in the previously filed campaign finance statement, through the period ending seven days before the filing of the post-election statement. R.C. 3517.10(A)(2). Accordingly, candidates and campaign committees should promptly review their books to ensure that all contributions and expenditures are accounted for, and conclude a (hopefully) successful campaign by filing their post-election campaign finance reports no later than 4:00 p.m. on December 15.
The Drone Integration Pilot Program will allow state and local governments to propose local rules permitting otherwise prohibited uses of unmanned aerial systems (UAS, more commonly known as “drones”) in their jurisdictions.
The program was established by a presidential memorandum and signed by President Trump on October 25, 2017. Two weeks prior, self-declared drone stakeholders including Amazon, FedEx and GoPro sent a letter to the president urging him to create such a program. Many American companies experiment with innovative drone technology overseas and the memorandum points to America’s outdated regulatory framework as the reason.
The program intends to encourage innovation by permitting state and local governments to determine which drone activities may occur within their specific jurisdictions. If the state or local government’s proposed operations are approved by the U.S. Department of Transportation (DOT), then the jurisdiction (which could be as large as an entire state) will become a “drone innovation zone.”
Activities that may be permitted in an innovation zone include flights over people as well as flights that take place at night. They also include utilizing a drone beyond the pilot’s visual line of sight, flying it as high as 400 feet above ground level, and using it for package delivery. The DOT and the White House both issued statements encouraging local governments eager to participate in the program to work with a private sector partner in developing their proposal.
The DOT is required to launch the program no later than January 22, 2018. Proposals from state and local governments are to be evaluated on multiple factors, including:
- the overall economic impact of the proposal
- the jurisdiction’s commitment to safety concerns
- involvement of local communities affected and their support of the proposal
- diversity of the operations to be conducted in the jurisdiction
- involvement of commercial entities in the proposal
The DOT must accept at least five proposals by July 22, 2018, but is not limited in the number of proposals it may select. State and local governments chosen to participate will be required to enter into agreements with the DOT regarding their drone innovation zone.
The program requires that the Federal Aviation Administration (FAA) issue waivers from federal regulations as necessary for the approved drone innovation zone. The issuance of waivers is intended to further the federal government’s goal of using state and local governments as a laboratory for the development of future federal guidelines and regulations.
Local governments interested in participating in the program, which is set to terminate October 25, 2020 or later, at the discretion of the DOT, should keep an eye out for additional guidance and begin identifying potential partners. Ohio has not yet indicated if it intends to submit a proposal to become a state-wide innovation zone, but such a proposal could significantly impact the state’s communities.
State and local governments may submit proposals to join the program for up to one year before the program is set to end.
On June 23, 2017, the U.S. Supreme Court issued its decision in the eminent domain case of Murr, et al. v. Wisconsin, et al., 582 U.S. ____ (2017). In Murr, the Court addressed whether two legally-distinct, but contiguous, commonly owned parcels should be treated as a single parcel in determining whether a regulatory taking has been effected. The Court rejected the different formalistic approaches suggested by the parties. Instead, the Court held that a multifactor test should be used that examines: (1) how state and federal law defines the property; (2) the physical characteristics of the property; and (3) the prospective value of the regulated land.
In Murr, the landowners were two brothers and two sisters who owned two adjacent lots along the St. Croix River in Troy, Wisconsin. The first lot, “Lot F,” was improved with a cabin. The second lot, “Lot E,” was vacant. The landowners planned to move the cabin to a different location on Lot F and sell Lot E to pay for the project. However, under state and county law a “merger provision” prevented the use or sale of adjacent lots under common ownership unless combined they had at least one acre of land suitable for development. The landowners in Murr had only 0.98 acres of buildable area due to the St. Croix River’s waterline and other topographical conditions. As such, the lots could not be used or sold separately under the law.
The landowners sought and were denied a variance from the county to allow the separate sale or use of the lots. Eventually, the landowners filed suit alleging that the “merger provision” under state and county law affected a regulatory taking by depriving them of all or practically all of the use of their property. The landowners lost at the state court level, and appealed to the U.S. Supreme Court.
In a 5-3 decision, the U.S. Supreme Court held that the landowners’ property should be evaluated as a single parcel, not as two separate and distinct parcels. The Court arrived at this conclusion by employing a multifactor test. The Court held that several factors should be considered, including (1) the treatment of the land under state and local law, (2) the physical characteristics of the land, and (3) the prospective value of the regulated land.
With respect to the first factor, the Court stated that a reasonable restriction (e.g., land use regulations, state and local law, etc.) predating a property owner’s acquisition of land is an objective factor that the property owner should reasonably consider in forming fair expectations about the property. Concerning the second factor, the Court looked at “the physical relationship of … distinguishable tracts, the parcel’s topography, and the surrounding human and ecological environment.” Finally, the third factor assesses “the value of the property under the challenged regulation, with special attention to the effect of [the] burdened land on the value of other holdings.”
Applying these factors, the Court held that the landowners’ lots should be evaluated as a single parcel. The Court considered the “merger provision” under state and local law and found that the property was subject to this law due to the landowners’ (or their predecessors’) voluntary act of bringing the property under common ownership. The Court considered the physical characteristics of the lots, specifically their rough terrain and narrow shape, and found that the facts supported treating the lots as a single parcel. Finally, the Court considered the prospective value that Lot E brings to Lot F. While state and local law prohibits the sale of the lots separately, the Court found there were benefits to using the lots jointly, such as increased privacy, recreational space, and the ability to locate improvements in their best location on the lots. Additionally, the Court found that the combined value of the lots ($698,300) exceeded their value as separate parcels (Lot E – $40,000; Lot F – $373,000).
After determining that “Lot E” and “Lot F” should be deemed a single property unit, the Court then determined whether a regulatory taking occurred. The Court found no regulatory taking because the landowners were able to make an economically viable use of the property as a residence and that the combined value of the lots decreased by less than 10 percent due to the challenged regulation (i.e, the “merger provision”). Additionally, the Court found that the merger provision was a reasonable land-use regulation, adopted as part of a combined federal, state and local effort, to protect and preserve the river and immediate properties.
While the outcome of this case is specific to its own facts and circumstances, when faced with a regulatory taking challenge involving multiple adjacent lots, local governments should make a reasonable effort to apply the multifactor test set forth in Murr to make the initial determination of what constitutes the property that is being regulated. This initial analysis will then assist local governments in determining the bigger question of whether the application of the regulation to the property constitutes a regulatory taking.
In an article written for Bloomberg BNA by reporter Alex Ebert, Todd Hunt commented on the dispute between the City of Cleveland and Cleveland City Council regarding Council’s ordinance providing funding for the renovation of Quicken Loans Arena.
In an article published on March 29, 2017 in the Elyria newspaper, The Chronicle-Telegram, Susan Anderson was recognized for her work on behalf of the City of Elyria. In this article, reporter Lisa Roberson noted that Susan has been working to determine which city employees should fall under nonexempt status and, consequently, are eligible to receive overtime payments.
The Private Sector.
Just before Thanksgiving, in a unanimous decision, the federal Sixth Circuit Court of Appeals ruled that local governments can enact right-to-work laws that will apply to private sector businesses and organizations whose labor relations are covered by the National Labor Relations Act (“NLRA”). Right-to-Work is shorthand for a law or ordinance that prohibits private sector collective bargaining agreements from making the payment of money to a labor union a condition of employment. The decision, United Autoworkers Union v. Hardin County, Ky., is now the law in Ohio, Kentucky, Michigan and Tennessee – the states that constitute the Sixth Circuit. Prior to Hardin, the NLRA was interpreted to reserve that right to the state government itself. Organized labor waged a furious, but ultimately futile campaign against the Hardin County law.
Ohio is bordered by three states that already have statewide right-to-work laws – Indiana, Michigan and West Virginia – and by a fourth state, Kentucky, that many labor observers expect to adopt one soon. To make themselves more attractive to business, cities and counties near these states are likely to be among the first adopters of a Hardin-type law or ordinance.
The Wall Street Journal reports that a similar case is underway in Illinois, which is in the Seventh Circuit in the federal scheme. If that case ever gets to the Seventh Circuit, which is likely because the stakes include untold millions of dollars in lost revenue for private sector labor unions, the result could be two neighboring federal Circuits that allow local right-to-work laws. On the other hand, if the Seventh Circuit answers the question differently than the Sixth Circuit did, the matter could land in the U.S. Supreme Court.
The Public Sector.
Public sector labor relations – police, fire, EMS, teachers, etc. – are covered by state law and not the NLRA. Consequently, there are dozens of different public sector labor relations statutes. Most state collective bargaining laws require public employees who work under collective bargaining agreements to either join the union and pay the dues the union charges or to opt out of union membership and pay to the union a fair share fee instead of dues. Each union must calculate its fair share fee in advance. Ohio’s Collective Bargaining Act requires fair share.
Recently, the fair share requirement was challenged under the U.S. Constitution in a California case known as Friedrichs v. California Teachers Association. That case made it to the U.S. Supreme Court, but was heard after Justice Antonin Scalia died and resulted in a 4-4, no-decision tie. There are several similar public sector cases in the works, but they will likely take several years to reach the Supreme Court, if any one ever does. However, right-to-work currently is a hot topic in labor law and given the November election results, Ohio and many other states are expected to tackle it in both the public and private sectors. As of December, 2016, Republicans outnumber Democrats 64 to 34 in the Ohio Assembly, and 23 to 10 in the State Senate.
On December 7, 2016, the Ohio General Assembly passed Substitute Senate Bill 331 (SB 331), which significantly impacts a municipality’s ability to regulate the placement, construction, modification, and maintenance of “small cell” wireless facilities in the public right of way. As originally introduced, SB 331 only sought to regulate dog sales by pet stores and retailers. But as the Generally Assembly went into its lame duck session, additional provisions – completely unrelated to the original subject – were inserted into the legislation, including amendments to Ohio Revised Code Chapter 4939 intended to provide expedited access to municipal right-of-way (ROW) for small cell wireless providers. Governor Kasich signed the bill on December 19, 2016, and it will take effect in 90 days.
SB 331 requires licensed wireless providers and franchised cable operators to go through the motions of requesting consent to take the following actions in the ROW with respect to small cell wireless antennae and equipment (all of which are deemed “permitted uses” anywhere in the ROW regardless of any local zoning provision):
- Attach an antenna system to an existing monopole, light pole, traffic signal, sign pole, or utility pole in the ROW (unless the utility pole is owned by a municipal electric utility); or replace or modify small cell antennae on such structure;
- Locate small cell wireless equipment for multiple wireless service providers on an existing pole;
- Replace or modify an existing antenna or associated equipment; or
- Construct a new pole or modify or replace an existing pole associated with a small cell antenna or equipment.
Note that the municipality must act on the application within 90 days of receipt, and if it fails to do so, the request is deemed approved. The 90-day period may be tolled by agreement between the municipality and the applicant; by the municipality if the application is incomplete (but be careful to follow the additional timelines prescribed in R.C. 4939.035); or by the municipality for up to an additional 90 days in the case of an “extraordinary number” of wireless facilities contained in pending requests (multiple antennae and facilities may be requested simultaneously). Be aware, however, that the even more accelerated 60-day timeframe for action under Section 6409 of the federal Spectrum Act still applies to “eligible facilities requests” as defined therein (R.C. 4939.039). The amount a municipality can charge to process a “request for consent” may not exceed $250.00 per antennae or wireless facility.
In addition, SB 331 greatly restricts the scope of review for municipalities considering small cell requests. The legislation prohibits cities and villages from:
- Applying zoning regulations to small cell wireless applications;
- Evaluating the business decisions of the applicant, the need for the antenna or equipment, or the availability of alternative locations;
- Precluding placement of equipment in a residential area or within a specific distance from a residence or other structure;
- Demanding the removal of existing wireless support structures or equipment as a condition of approval of a new application;
- Limiting the duration of any permit;
- Imposing separation or spacing requirements between antennae and equipment;
- Enacting any moratorium on the filing, consideration or approval of applications; or
- Entering into exclusive arrangements for the right to attach to a municipal corporation’s poles or other delineated support structures.
With respect to the last item above, the bill goes so far as to require that a municipality may not refuse to provide access to its own wireless support structures, poles or facilities in the ROW, if a wireless provider wishes to use those structures or poles. For such use, a municipality may charge no more than $200 per year per attachment (to its own ROW poles and facilities) – regardless of whether this amount covers the municipality’s costs.
The telecommunications industry sought these changes, in part, to expedite approvals for the planned installation of small cell facilities needed to create faster, higher capacity 5G networks. These new ORC provisions go further than federal law in preempting local review. SB 331 offends principles of Home Rule and violates the single-subject rule. Further, it disregards a municipality’s ownership interest, on behalf of its residents and the public, in its ROW and its structures within the ROW. Nevertheless, Ohio cities and villages should review the revisions to ORC Chapter 4939 as well as existing federal law applicable to small cell wireless facilities. It is all but certain that Ohio municipalities will see a dramatic increase in the number of applications for small cell facilities, and they should understand their authority to review those applications, along with the limits of that authority.
In State ex. rel. Cincinnati Enquirer, et al. v. Deters, Pros. Attorney,
released on December 20, 2016, the Ohio Supreme Court was faced with
several important issues raised by the use by police departments of
body-camera video. The Court determined that, assuming such video
constitutes a “public record,” public bodies are entitled to a
reasonable amount of time to review the video for needed redactions
before the video must be released. This case is a reminder that public
bodies must be prepared for the age of ubiquitous video, which is upon
Numerous Cincinnati media outlets requested body-camera video
from the Hamilton County Prosecutor’s Office. The body-camera video had
captured the shooting of a motorist by a University of Cincinnati police
officer subsequent to a traffic stop. Three of the media outlets had
not actually requested the body-camera video from the prosecutor’s
office, but had requested it from other sources (police departments).
The Court dismissed these claims because these relators had not
requested the video from the prosecutor’s office (the sole respondent in
the mandamus action).
In initially refusing to release the video,
the prosecutor’s office had asserted that body-camera video should not
be released because such release could jeopardize a fair trial. The
prosecutor’s office also argued that the videos could reveal
confidential investigatory techniques or procedures, and/or constituted
investigatory work-product. It was also argued that the videos were
either a confidential law-enforcement investigatory record or a
trial-preparation record, and therefore exempt from release. Ultimately,
because the video was released, the Court did not need to determine if
any of the asserted grounds for refusing to the release of the video was
valid. The Court assumed, without deciding the issue, that a
body-camera video is a public record.
Instead, the Court denied
the writ because the Court determined that, even if the requested
body-camera video is a public record, the purpose of a mandamus action
is to compel the release of records. Because the video had been released
by the prosecutor’s office two days after the action was filed, the
mandamus action had been rendered moot.
In addressing whether the
statutory penalty and legal fees should be paid to the relators, the
Court noted that “***the prosecutor was entitled to review the video to
determine whether any redaction was necessary and produced the
body-camera video six business days after it was initially received by
his office***.” The Court concluded this was a reasonable period of
time. Consequently, the relators were not entitled to statutory damages
or attorney fees.
Public bodies, and law enforcement agencies in
particular, should take note of this case and be prepared to respond to
public records requests for body-camera video. Public bodies may need to
redact portions of the video via pixelating or otherwise obscuring the
images of persons or things that are shown in the video. Alternatively,
the public body may need to be prepared to argue why the entire video
should not be released. A thorough review of both police body-camera
policy and public record policy is advisable to determine if the issues
raised by this case have been adequately addressed. It is also advisable
to develop a plan for redacting video as most police departments do not
have this capacity in-house.
Stephen Byron is a partner, and Susan Bungard is an associate in the firm’s Public Law Services group.
Legislation that will significantly expand the remedies available to requesters of public records will take effect on September 28, 2016. The effect on local governments responding to public records requests is not yet clear. S.B. 321 was passed unanimously on May 25, 2016.
Beginning September 28, 2016, individuals may dispute the delay or denial of a public records request in the Ohio Court of Claims. The Court of Claims process is the first of its kind in the nation and is intended to make the process of disputing public records request denials or delays simple and affordable.
New Court of Claims Dispute Resolution Process
An individual may file a complaint with the Court of Claims by filing the complaint on a form that will be available online starting on September 28th and paying a fee of $25. The complaint must be filed either in the Court of Claims or in the court of common pleas of the county where the public office from which records have been requested is located.
In most cases, the dispute will be referred to mediation. However, if the parties are unable to mediate the dispute to a resolution, a special master, currently former Assistant Attorney General Jeff Clark, will consider the dispute. Public offices must respond to the complaint within 10 business days from the date mediation is terminated. Each party may attach affidavits in support of its complaint or response, but may not conduct discovery. The special master will issue a report and a recommendation based on the relevant law at the time of filing.
If the special master’s recommendation is approved by the Court of Claims, then the recommendation becomes binding on the parties. Either party may object to the recommendation. Upon objection, the Court of Claims will reconsider the recommendation before making a final order. Either party may appeal the final order of the Court of Claims to the state appellate court of the county where the public office is located.
A prevailing complainant is entitled to receive copies of the public record, as well as recover the $25 filing fee and other costs associated with the action. Typically, the complainant may not recover attorney’s fees.
(Please see the chart below for a more detailed explanation of the Court of Claims process.)
Auditor and Ohio Attorney General Dispute Services Discontinued
Prior to the introduction of the new Court of Claims process, the Ohio Auditor and the Ohio Attorney General established services to address public records disputes. Neither dispute resolution service provided a legally binding decision to the parties, but both served as affordable alternatives to a mandamus action. The Ohio Attorney General and the Auditor have discontinued such services given the new Court of Claims process.
Mandamus Action Still Available, but Public Office Can Recover if Frivolous
Individuals are still afforded the option to dispute a public records denial or delay by filing a writ of mandamus to compel the public office to release the records. Such action is often expensive and time-intensive, but also allows the parties to engage in discovery.
Further, a court may compel the relator to pay the public office’s court costs, expenses, and reasonable attorney’s fees if the relator files a frivolous mandamus action.
Additional Changes to Ohio Public Records Law
S.B. 321 also made the following changes to Ohio’s public records law:
- A relator may be awarded reasonable attorney’s fees if the court determines the public office acted in bad faith, but the law precludes discovery on the issue of bad faith.
- If a writ is not issued and the court determines that the mandamus action was frivolous conduct, the court may award the public office all court costs, expenses, and reasonable attorney’s fees.
- A relator may be awarded court costs if the records are provided in bad faith after the individual initiates a mandamus action, but before the court issues an order on the mandamus action. Prior law required awarding court costs to relator if the court orders the public office to comply with the public records law.
- If a public office provides records on a free, accessible, searchable website, then the public office can limit the number of records it will digitally deliver to 10 records per month. However, a public office must provide records if not available online or if the requestor certifies that the records will be used for a non-commercial purpose. Prior law only limited the number of records transmitted by U.S. mail to 10 records per month.
- Infrastructure records of a private entity may be exempt from disclosure. This exemption applies if the record is accompanied by a written statement affirming the expectation of protection from disclosure.
- The defendant, counsel, or agent of a defendant in a criminal action making a request for public records related to the case must serve a copy of the request to the prosecutor, and the public records request is considered a demand for discovery pursuant to the Criminal Rules unless a contrary intent is indicated.
- A private, non-profit institution of higher education shall not be held liable for any claim that arises due to disclosure of public records, including a breach of confidentiality claim, as a result of their disclosure of a public record.
Municipalities, school districts, and other entities subject to Ohio’s public records laws should expect individuals to utilize the new process to more readily dispute a denial or delay of a public records request. Entities subject to Ohio’s public records law should review their public records policy for consistency with the Ohio laws, and familiarize themselves with the new Court of Claims dispute resolution process and the complaint form when it goes live on September 28th.
If you have any questions about this change in the law, please contact a member of Walter | Haverfield’s Public Law group.
On May 31, 2016, Ohio Governor John Kasich signed House Bill 180. This bill prohibits a public authority/local government from requiring a contractor to employ a certain percentage of individuals from the geographic area of the public authority for the construction or professional design of a public improvement. The bill further prohibits a public authority from providing a bid award bonus or preference to a contractor as an incentive to employ as laborers a certain number or percentage of individuals who reside within the defined geographic area or service area of the public authority.
House Bill 180 was introduced by State Representative Ron Maag from Lebanon, Ohio. Maag asserted that local hiring rules shut out workers in their regions from getting construction jobs in large cities in their areas. The Ohio Contractors Association also argued that these hiring rules make it harder for contractors to hire the most qualified workers and require contractors to take on unskilled and entry-level workers.
In enacting this legislation, the Ohio General Assembly declared its intent to recognize the inalienable and fundamental right of an individual to choose where to live, that the Ohio Constitution specifies that laws may be passed providing for the comfort, health, safety, and general welfare of all employees, that it is a matter of statewide concern to generally allow employees working on Ohio’s public improvement projects to choose where to live and, therefore, it is necessary in order to provide for the comfort, health, safety, and general welfare of employees to generally prohibit public authorities from requiring contractors to employ a certain number or percentage of individuals who reside in any specific area of the state.
Due to the passage of House Bill 180, public authorities, including municipalities, may no longer pass legislation requiring contractors to hire locally. Nor may they give incentives to contractors for reaching local hiring goals.
On Tuesday, the Ohio Supreme Court held that an email exchange between a majority of school board members may qualify as a meeting under Ohio’s Open Meetings Act. The plaintiff, a board member who conducted an independent investigation into alleged improper expenditures by two athletic directors within the school district, voted against a proposed board policy that would have limited similar future investigations. A newspaper editorial praised the plaintiff – the dissenting board member.
Once the editorial was published, and at the direction of the board president, plaintiff’s four other colleagues on the board and several district staff members collaborated on a formal response to the editorial. However, they did so by email and without plaintiff’s involvement. The board president submitted the final response to the paper, signing it in his official capacity.
The plaintiff then sued the board and its individual members, alleging that the email collaboration violated the Open Meetings Act, which requires board meetings to be open to the public. In response, the board publicly ratified its previous response to the paper and denied any violations. Both the trial and appellate courts held for the defendants, finding that sporadic emails do not constitute a meeting because there was no rule or resolution pending before the board.
The Ohio Supreme Court disagreed. The Court explained that the Open Meetings Act prohibits any private prearranged discussion of public business by a majority of the members of a public body regardless of whether the discussion occurs face to face, telephonically, by video conference, or electronically by email, text, tweet or other form of communication. The Court emphasized that categorically excluding email communications from the Open Meetings Act would subvert the Act’s purpose. The Court also noted that by ratifying its response to the paper, the board retroactively made the previous discussions a matter of public business under the law.
Aside from granting plaintiff the ability to proceed with his lawsuit, this decision also cautions public officials to avoid prearranged public business discussions in any medium, especially if the communications involve a quorum. By conducting such discussions, a public body risks violating the Open Meetings Act. Such discussions should wait until an open meeting can be convened.
If you have any questions about this decision, please contact a member of Walter | Haverfield’sandnbsp;Public Law group.
On February 25, 2016, Aimee W. Lane was a co-presenter at The CMBA’s Government Attorneys Section and the Northeast Ohio Law Directors Association’s “Annual President’s Day Seminar and Municipal Law Update.” At this program, held in Cleveland, Ohio, Aimee spoke on the topic, “4th, 5th, and 14th Amendment Issues Related to Code Enforcement.”
On January 26, 2016, the Ohio Supreme Court decided State ex rel. Cornerstone Developers, Ltd. v. Greene Cty. Bd. of Elections,
Slip Opinion No. 2016-Ohio-313. In the case, the Court ordered the
Greene County Board of Elections to remove a tax levy from the March
2016 ballot because the Sugarcreek Township Board of Trustees failed to
follow the statutory procedure for placing the question of a tax levy on
Chapter 5705 of the Ohio Revised Code establishes
the procedure for placing a statutory tax levy on the ballot. First, a
taxing authority must pass a “Resolution of Necessity” asking the county
auditor to certify the current tax valuation of the political
subdivision. After receiving the auditor’s certification, a taxing
authority must pass a separate “Resolution to Proceed” submitting the
question of the tax to the voters. The taxing authority must certify the
“Resolution to Proceed” to the county board of elections at least
ninety (90) days prior to an election.
Instead of following the
statutory procedure, Sugarcreek Township’s Board of Trustees passed
legislation making a finding that the taxes that ‘may be raised within
the 10 mill limitation will be insufficient’ and declared the necessity
for an additional levy. The Trustees transmitted this legislation to the
county board of elections and the tax levy was placed on the ballot.
Developers challenged the tax levy’s placement on the ballot because
the Board of Trustees failed to pass a Resolution to Proceed and failed
to certify such resolution to the county board of elections at least
ninety days prior to the election. The Ohio Supreme Court recognized
this to be a fatal flaw, and ordered the tax levy removed from the March
is significant because it demonstrates that omnibus tax levy
legislation is insufficient to satisfy Chapter 5705. Instead, a taxing
authority must pass both a “Resolution of Necessity” and a “Resolution
to Proceed,” then timely certify the “Resolution to Proceed” to the
county board of elections at least ninety (90) days prior to the
If you have questions about Cornerstone Developers,
or any other public law matters, please contact Benjamin G. Chojnacki,
Stephen L. Byron or any of the attorneys in Walter | Haverfield’s Public
In late December 2015, Governor John Kasich signed a law that prohibits public employers, including townships, villages, municipal corporations, and public school districts, from asking questions about an applicant’s criminal background on their job applications. Under the new law, the Fair Hiring Act, public employers are permitted to conduct background checks, but they can only do so later in the application process. The law takes effect March 23, 2016.
Under the new law, public employers will not be allowed to ask applicants about past criminal convictions on written job applications. It is permissible, however, for a public employer to include a general statement on the written application regarding criminal offenses which may preclude employment under the law (e.g., disqualifying offenses in the public school setting). Further, public employers will have the opportunity to inquire about an applicant’s criminal background later in the process, and public employers will not be prohibited from taking an applicant’s criminal history into account when deciding whether to hire an employee. Public employers, however, will face increased scrutiny about the manner in which they use the criminal background check information when making decisions regarding employment. Thus, public employers might want to consider the Equal Employment Opportunity Commission’s guidance that any decisions based on an applicant’s background, should be job related and consistent with business necessity.
There is some speculation as to whether the law applies to municipal corporations under the Home Rule Amendment to the Ohio Constitution. The issue is whether the law addresses a “matter of local self-government.”
In addition, the new law includes an amendment to Ohio Civil Service Law. Public employers are now clearly prohibited from using a felony conviction against a current classified officer or employee unless the conviction occurs while the classified officer or employee is employed in the civil service. If, however, the classified officer or employee is convicted of a felony while employed in a classified position, the employee may be removed from his or her position.
The new law does not apply to private employers.
Across the nation and in Northeast Ohio, claims of unlawful shootings and excessive force are making headlines in alarmingly increasing numbers, resulting in heightened scrutiny of police policies and protocols related to the training of law enforcement officers and the use of force. Suddenly, Mayors, Police Chiefs and other city officials are finding themselves having to spend more time addressing public relations issues arising from such allegations, which can very quickly make a police department the focus of local, state and national news, if not subject to a Department of Justice investigation.
Legally speaking, when a claim of excessive force is asserted, the priority is to minimize, if not negate entirely, a city’s financial liability. Beyond money, however, the police department’s credibility and goodwill with the local community are at stake. Without appropriate action before an allegation of excessive occurs, the result could be a complete public relations nightmare.
The key to avoiding such a nightmare is proper planning. When a claim of excessive force is made, there can be demands placed on the police department and City Hall from a number of sources: TV cameras will be running; families will be demanding answers; news organizations will be making public records requests; and unions will be demanding fair treatment of the officers involved. At that point, public officials are so inundated that there is very little time to do anything but react; proactively managing the situation becomes difficult, if not impossible, without appropriate measures having been put into place long before the allegation arose.
There are things that can be done, however, to prepare a City and police force for such allegations, including:
- Designate an appropriate spokesperson–typically the Police Chief or Mayor–as well as other members of administration in the absence of the lead spokesperson, to address the media and other community leaders in the event an allegation occurs.
- Create preliminary “template” messages that can be used in the immediate aftermath of a potential crisis event. These messages can be used to respond to the onslaught of media inquiries before there is time to fully investigate the incident. These messages should be housed in a convenient location where they can be quickly and easily accessed and, if necessary, revised to fit the particular situation.
- Determine how communications with family members of alleged victims will be handled. Will they be handled by press release or in person and, if so, by whom? What could and should be said in various circumstances? For example, is it appropriate to express regret or not?
- Determine if there is a need to hire an outside crisis communications firm or if resources exist in-house to handle specific situations. Do your homework on outside crisis communication firms so that you have an immediate contact to call when an event occurs.
- Carefully consider manpower needs and determine how the department will promptly and accurately handle the potentially large number of public records requests, which often include requests for personnel records, training records, 911 recordings, dashcam videos, etc.
- Consult legal counsel to determine what is required to be released immediately, what can be delayed from release, and what is wholly exempt from release under Ohio Public Records Law.
- Review and maintain copies of any internal procedures and relevant collective bargaining agreement provisions relating to conducting internal investigations of law enforcement personnel.
- Provide up-to-date training for all personnel on use of force and firearm proficiency, search and seizure procedures, and community relations. Document all such training.
- Train your police officers to recognize situations that could result in an excessive force claim to ensure that officers accurately complete the police report and follow all departmental policies and procedures with the processing of the crime scene, as the handling of the incident by the department will be heavily scrutinized if an allegation of excessive force is made.
- Create a venue for officers to confidentially report the conduct of other officers that does not meet the standards of the department. This is an especially sensitive issue given the “family” culture that permeates most police forces and creates a sense of needing to protect or cover for fellow officers.
Finally, consideration should be given to creating a joint task force to make recommendations if an excessive force allegation occurs. This task force should be comprised of public officials such as the Mayor, Safety-Service Director, Police Chief, and/or Council members, as well as the local union leadership and non-profit and private sector community leaders. It is important to create the task force before an allegation of excessive force is made to ensure that there is ample time to outline not only the scope of the authority of the task force, but also how the task force will implement that authority. The use of such a task force can be controversial, but if comprised of the right individuals, it can be effective in fostering and, if necessary, repairing the relationship between the police department and the community.
Locally, we don’t have to look far to see the real world impact of charges of excessive force. Cities such as Cleveland and Cincinnati are currently under increased scrutiny due to claims of unlawful shootings and excessive force. Even smaller cities and municipalities, however, can be subject to such claims as it only takes one incident to put a department in the spotlight. If that happens, a huge amount of time and resources will be required to address the immediate aftermath, but once the dust settles and things calm down, the ramifications of the allegation remain: lawsuits may be filed, criminal investigations and trials may occur, jobs may be lost, and reputations may be irreversibly damaged. Appropriate planning and training not only may minimize the impact if an excessive force allegation is made; they may prevent such an allegation from occurring in the first place.
Contact: Susan Keating Anderson
Byandnbsp;Stephen L. Byron,andnbsp;Aimee W. Lane, andandnbsp;Ellen R. Kirtner, Law Clerk
On Thursday, June 18, 2015, the United States Supreme Court announced its decision inandnbsp;Reed v. Town of Gilbert. Inandnbsp;Reed, the court held that a municipal ordinance in Gilbert, Arizona is in violation of the First Amendment. The ordinance allowed for varying restrictions on sign content based on the particular message on the sign. Although the ordinance did not directly regulate the messages on signs, the ordinance was held to be content-based because varying rules were imposed based on a sign’s message.
Good News Community Church challenged the Gilbert ordinance. The church had been cited twice under the ordinance for posting temporary signs which contained information about the time and location of the church’s services. The church posted more signs than were permitted under the ordinance, the signs were posted for a longer time than was permitted under the ordinance, and the signs failed to include the dates of events; all of these conditions violated the town’s sign ordinance.
The town’s ordinance had defined the church’s signs as “temporary directional” signs, which were one of the most tightly regulated types of signs under the ordinance. The ordinance limited the number, location, and length of time these signs could be displayed. The town imposed less stringent restrictions on other types of signs, such as political signs and ideological signs.
The U.S. Supreme Court reversed the Ninth Circuit Court of Appeals decision, which held that the ordinance was content-neutral, and thus constitutional. The Supreme Court held that while the ordinance did not place any limitations on the specific messages written on signs, it did regulate signs based upon the messages that were conveyed. For example: “temporary directional signs” are signs which direct the public to a “qualifying event” (such as a church service), “political signs” are signs “designed to influence the outcome of an election,” and “ideological signs” are signs “communicating a message or ideas.”
The majority opinion of the Court stated that local governments could still regulate signs via content-neutral ordinances to address safety concerns and aesthetics. For example, the town could limit size, building materials, lighting, moving parts, or the location of signs, provided that the limitations apply to all signs equally, and the extent of regulation did not depend upon the message that the sign conveyed.
A concurring opinion noted that the majority opinion, while correctly striking down the Gilbert regulations, had drawn a bright-line rule which would subject many local ordinances to “strict scrutiny,” and that it was unlikely those ordinances would survive that higher standard of review. This outcome would subject numerous reasonable regulations to fatal challenges.
The Court’s decision inandnbsp;Gilbertandnbsp;serves as a reminder that drafting and implementing lawful sign regulations is a difficult task. Communities should revisit their regulations to determine whether the laws on the books will subject them to a constitutional challenge.
If you have any questions regarding the issues addressed in this Client Alert, please contact a member of Walter | Haverfield’sandnbsp;Public Law Services group.
Byandnbsp;Stephen L. Byron,andnbsp;Benjamin G. Chojnacki, andandnbsp;Ellen R. Kirtner, Lawandnbsp;Clerk.
Ohio Attorney General Mike DeWine announced yesterday that the State of Ohio has reached a settlement in its price-fixing lawsuit against road salt providers Cargill, Inc. and Morton Salt, Inc.
The lawsuit alleged that Cargill and Morton spent nearly a decade engaged in a conspiracy that caused state and local governments to pay an artificially high price for road salt. In exchange for dismissing the case, and without admitting any wrongdoing, Cargill and Morton have agreed to pay the State of Ohio $11.5 million.
The Attorney General will distribute this money among local governments, the Ohio Department of Transportation, and the Ohio Turnpike Commission.
Local governments will be asked to submit documentation to the Attorney General showing that they purchased road salt from either Cargill or Morton at any time from 2008 to 2010. To ensure prompt distribution of settlement funds, municipalities should gather all available documentation showing they purchased road salt from either Cargill or Morton at any time from 2008 to 2010, and wait for further instruction from the Attorney General.
If you have any questions about the settlement, or any other public law issues, please contact one of the attorneys in Walter | Haverfield’sandnbsp;public law group.
Byandnbsp;Stephen L. Byronandnbsp;andandnbsp;Aimee W. Lane.andnbsp;
The State of Ohio reached an $11.5 million settlement in its price-fixing lawsuit against road salt providers Cargill, Inc. and Morton Salt, Inc.
Under the terms of theandnbsp;settlement, public entities that purchased road salt from Cargill and/or Morton between July 1, 2008 and June 30, 2011 may be entitled to receive compensation for overpayment because of artificially high prices.
In order to determine eligibility, local governments were asked to submit aandnbsp;claim form, found on the Ohio Attorney General’s website, beforeandnbsp;August 7, 2015. The form requires public entities to provide information concerning their purchase of rock salt for each of the 2008, 2009, and 2010 seasons as well as some identification information.
If you have any questions about the settlement, the claim process, or any other public law issues, please contact one of the attorneys in Walter | Haverfield’sandnbsp;Public Law Services group.
Ohio firearms laws are complicated. A failure to know these laws can turn an encounter with a citizen, or a seemingly innocuous personnel policy, into a lawsuit with the municipality on the losing side.
Yet, with general rules that have exceptions, caveats that change depending upon who is carrying the firearm, a multitude of types of firearms, and differing regulations that apply to various locations where the firearm is being carried, law enforcement personnel and public entities have a lot to know in order to understand the law. We offer the following summation of Ohio firearms law and highlight two recent cases that demonstrate why public entities and law enforcement personnel must develop a sufficient understanding of Ohio’s firearms laws.
An Overview of Ohio Firearms Law
Ohio Revised Code § 9.68 declares that a person may own, possess, purchase, sell, transfer, transport, store or keep a firearm without license, permission, restriction or delay, except as limited by the United States Constitution, the Ohio Constitution, federal laws and state laws.
The law’s broad authorization means that a person’s rights to own, possess, sell, transfer, transport, store or keep a firearm in Ohio may only be limited when a federal or state law specifically imposes a restriction.
The law also provides that if a plaintiff prevails in an action against a political subdivision for a violation of the person’s rights to own, possess, sell, transfer, transport, store or keep a firearm, the political subdivision must pay the attorney fees of the person who challenged the ordinance, rule or regulation. Thus, if you are wrong in your analysis, your error may be very costly.
In Ohio, there is no law that makes it illegal to openly carry a firearm on public property. Thus, “open carry” is generally legal. Ohio law curtails this broad general rule by prohibiting certain persons from possessing firearms. If a person is a convicted felon, a mentally incompetent person, or a person who is under the influence of drugs or alcohol, that person is prohibited from carrying a firearm.
If a person wants to carry a concealed firearm, that person must comply with Ohio’s concealed carry laws. Generally, if the firearm is something other than a handgun, then a person cannot carry it concealed on his or her person. If the firearm is a handgun, however, a person may carry it concealed in compliance with Ohio’s concealed carry laws.
Ohio’s concealed carry laws permit license holders to carry handguns concealed on their person. Yet, even persons with a concealed carry license are prohibited from carrying concealed handguns in certain “forbidden carry zones,” including police stations, courthouses, school safety zones, and any state or local government buildings that are notandnbsp;primarily used as a shelter, restroom, parking facility for motor vehicles, or rest facility.
Ohio also regulates the proper handling of firearms in motor vehicles. Any person may transport or have firearms in a motor vehicle, so long as the firearm is unloaded and carried in a closed box; carried in a compartment that may be reached only by leaving the vehicle; carried in plain sight and secured in a rack made for that purpose; or, for larger firearms, carried in plain sight with the action open and the weapon stripped. Persons with concealed carry licenses may carry handguns on their persons while in their vehicles.
As with any complicated regulatory scheme, the devil is in the details. Public entities, generally, and, specifically, police officers must be careful to ensure that their actions do not infringe upon an individual’s rights or regulate a person’s actions in any manner not expressly permitted by federal or state law.
Case Study: Open Carry and the Fourth Amendment
The case of Northrup v. City of Toledo Police Div., demonstrates how the interplay between Ohio firearms law and the Fourth Amendment to the United States Constitution can lead to conflict between citizens and law enforcement.
In June of 2010, Shawn Northrup was on an evening stroll with his wife, daughter, grandson, and dog. He was lawfully carrying a handgun holstered on his hip in plain view. A concerned citizen saw Northrup openly carrying a handgun and called 9-1-1. Police were dispatched and the officer initiated an investigatory stop to determine whether Northrup had or was engaging in any criminal activity. During this stop, Northrup allegedly made a “furtive movement” towards his gun. The officer responded by handcuffing Northrup and placing him in the back seat of his cruiser. Northrup was cited for failure to disclose personal information. Ultimately, the City dropped the charges.
Northrup responded by suing the City. He alleged that the officer’s investigatory stop violated his Fourth Amendment right to be free from unconstitutional searches and seizures because the officer lacked reasonable suspicion to believe that he had committed a crime – after all, he was not breaking any law by openly carrying a firearm. The City defended the case by claiming that a 9-1-1 call stating that a man was openly carrying a firearm provides an officer with reasonable suspicion that a crime had or might occur and, as such, an investigatory stop was justified.
The Court rejected the City’s argument and issued a decision holding that an officer’s mere hunch that an individual openly carrying a firearm might have committed some crime does not give rise to the reasonable suspicion needed for an officer to conduct a legal investigatory stop without violating the Fourth Amendment.
The City of Toledo Police Division is appealing the Court’s decision to the United States Court of Appeals for the Sixth Circuit.
The tension between a person’s right to lawfully carry a firearm and an officer’s obligation to protect and serve can lead to conflict. Public entities must take steps to ensure that its officers are safe, educated, and well-prepared to address issues that may arise when dealing with persons carrying firearms.
Case Study: Codes of Student Conduct and Personnel Policies
In July 2014, Students for Concealed Carry Foundation sued The Ohio State University, alleging that the University’s Code of Student Conduct, Workplace Violence Policy, Office of Student Life Standards of Conduct, and Residence Hall Handbook, all unlawfully restrict the student, faculty, and staff’s right to carry firearms.
The Students for Concealed Carry Foundation case is still in the early stages of litigation. It may, however, be a harbinger of future litigation against public entities whose personnel policies or codes of conduct regulate firearms in a manner more restrictive than state and federal law. Public entities should review their personnel policies and codes of conduct to ensure no improper restrictions are present.
Whether responding to a concerned citizen, drafting a personnel policy, or creating a student code of conduct, law enforcement personnel and public entities must be informed about the nuances of Ohio firearms law. Consultation with legal counsel can mitigate exposure to future litigation.
To reach Attorney Chojnacki, call 216-781-1212 or e-mail email@example.com.
On December 18, 2014, the Ohio Supreme Court issued an opinion overturning the Sixth District Court of Appeals decision which held that the City of Toledo’s administrative appeal process for traffic camera citations violated the exclusive jurisdiction of the municipal courts.
The Ohio Supreme Court specifically held that “Ohio municipalities have home-rule authority to establish administrative proceedings, including administrative hearings, related to civil enforcement of traffic ordinances, and that these administrative proceedings must be exhausted before offenders can pursue judicial remedies.”
The full text of the Slip Opinion inandnbsp;Walker v. Toledoandnbsp;can be foundandnbsp;here.
On December 8, 2014,andnbsp;Charles T. Riehlandnbsp;spoke on the topics, “Analyze the Land Subdivision Process” and “Understand the Development and Utilization of the Comprehensive Plan,” at the NBI Seminar (“Land Use Law: Current Issues in Subdivision, Annexation and Zoning”), in Independence, Ohio.
On October 10, 2014,andnbsp;Charles T. Riehlandnbsp;spoke on the topic, “Request for Qualifications and Request for Proposals – Design Build,” at a Lorman Seminar (“Public Contracts and Procurement Regulations in Ohio”), in Toledo, Ohio.
Byandnbsp;Stephen L. Byron,andnbsp;Aimee W. Lane,andnbsp;and Kalynne Proctor, Law Clerk
On July 1, 2014, the U.S. Supreme Court agreed to review First Amendment challenges brought by Good News Community Church, alleging that a sign ordinance in the town of Gilbert, Arizona violates the right to free speech. Members of the church displayed 17 signs in the area surrounding its place of worship, announcing the time and location of its services and inviting the community to attend. Following the placement of these signs, the church was informed by the town that it was in violation of the sign ordinance. The ordinance allows only 4 such signs, classified as Temporary Directional Signs, to be placed on the church’s property for up to 12 hours on the day services are held. The ordinance further restricted such signs by limiting their size and placement throughout the town.
The town imposes less restrictive regulations on other types of signs. Specifically, political signs can be larger in size, displayed for months on end, and are not limited in number. Ideological signs can be even larger in size, with no limitation on location or number of signs displayed, nor any limitations on how long the signs can be displayed.
The procedural history of this case is lengthy and complex. In a prior decision, the Court of Appeals concluded that the sign restrictions, including the distinctions among them, were content-neutral. Accepting this former decision as law of the case, the Court of Appeals ultimately held that the town’s different treatment of types of noncommercial temporary signs based on size, duration, and location is constitutional; the regulations are not content-based, and the restrictions are tailored to serve significant governmental interests, thus satisfying First Amendment requirements for content-neutral restrictions on speech.
The U.S. Supreme Court’s decision in this case could help clarify distinctions between “content-based” and “content-neutral” ordinances, an important factor under First Amendment analysis, and therefore may have a direct and significant impact on local governments nationwide. We will update you on any new development in this case that might impact your community.
If you have any questions regarding the issues addressed in this Client Alert, please contact a member of Walter | Haverfield’sandnbsp;Public Law Services group.
Sub. House Bill (H.B.) 289 was enacted into law on June 5, 2014, and became immediately effective. The new law, which had been amended several times in Bill form, prohibits the formation of new alternative Joint Economic Development Zones (JEDZs) after January 1, 2015, and creates Municipal Utility Districts (MUDs) in place of “municipal-only” JEDZs. Existing “municipal-only” JEDZs are now known as MUDs. Note, however, that the new law does not impact Joint Economic Development Districts (JEDDs).
Under prior law, a JEDZ could be created through two statutory methods. The first method was the “municipal-only” method under Ohio Revised Code Section 715.69. The second method, under R.C. 715.691, deemed the “alternative method”, allowed both municipalities and townships to create a JEDZ and levy an income tax in the Zone.
The new law repeals R.C. 715.69, and the provisions for “municipal-only” JEDZs are essentially moved to a new R.C. 715.84, where these zones are labeled as Municipal Utility Districts. The law expressly provides that JEDZs created under R.C. 715.69 are to be now known as MUDs without any further action of the contracting parties.
Also, under the new law, the provisions for “alternative method” JEDZs are significantly amended. After January 1, 2015, municipalities and townships will not be able to create a new JEDZ, renew an existing JEDZ, or substantially amend an existing JEDZ. “Substantial amendment” is defined as any change to the JEDZ contract that increases the rate of income tax that may be imposed within the Zone, changes the purpose for which the income tax may be used, adds one or more contracting parties, or changes the area included within the Zone.
Between June 5, 2014 and December 31, 2014, any JEDZ created or amended must include an economic development plan for the Zone within the terms of the JEDZ contract, along with a schedule for the implementation of new or expanded services, facilities or improvements in the JEDZ or surrounding area. A seven-member joint economic development review council must be formed and give its approval before the JEDZ contract, or substantial amendment thereto, is approved by the contracting parties. The review council includes the county auditor, as chairman, as well as four business owner members from within the Zone. The law requires that 50% of the revenue from income taxes imposed by an alternative JEDZ be dedicated to the provision of new, expanded or additional services as specified in the economic development plan.
On June 25, 2014, the United States Supreme Court, inandnbsp;Riley v. California, issued a decision holding that, except under “exigent circumstances,” law enforcement officers may not search digital information on cell phones seized incident to arrest without a search warrant. Digital information includes, but is not limited to, photographs, call logs, email and text communications, contacts, and calendars.
“Exigent circumstances” which would allow warrantless searches include the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury.
The Court’s decision noted that if law enforcement officers seize a cell phone in an unlocked state, the officer may disable the cell phone’s automatic-lock feature in order to prevent the cell phone from locking and encrypting data, under the principle which allows the officer to take reasonable steps to secure a scene to preserve evidence while awaiting a warrant.
The Court’s ruling does not impact a law enforcement officer’s ability to search the physical aspects of a cell phone to ensure it cannot be used as, and does not contain, a weapon.
Aimee W. Laneandnbsp;discussed the topic, “Variances” at the Ohio State Bar Association’s “Land Use and Zoning” seminar on May 21, 2014, in Cleveland, Ohio.
Sub. House Bill (H.B.) 289, passed by the Ohio House and now pending before the Senate, if enacted, will significantly change the statutory provisions for Joint Economic Development Zones (JEDZ or Zone) and would ultimately prohibit, as of January 1, 2015, the creation of new JEDZs, the renewal of existing JEDZs, and the substantial amendment of existing JEDZ contracts. H.B. 289 also places new, substantial requirements on JEDZs created or amended between the Bill’s effective date and December 31, 2014. Note, however, that this Bill will not impact Joint Economic Development Districts (JEDDs).
A JEDZ can be created through two statutory methods. The first method is the “municipal-only” method under Ohio Revised Code Section 715.69. The other method, deemed the “alternative method” and created under R.C. 715.691, allows municipalities and townships to create a JEDZ and levy an income tax in the Zone if one contracting party does not levy a municipal income tax. H.B. 289 is generally applicable to both methods of JEDZ creation, although there are a few distinctions discussed below.
Provisions Applicable After January 1, 2015
- H.B. 289 terminates the authority of municipalities and townships to create new JEDZs or renew existing JEDZs after January 1, 2015.
- The Bill also prohibits the contracting parties from substantially amending an existing JEDZ contract after the same date. The Bill defines a substantial amendment as any change to the JEDZ contract that increases the rate of income tax that may be imposed within the Zone, changes the purpose for which the income tax may be used, adds one or more contracting parties, or changes the area included within the Zone.
Provisions Applicable After the Bill’s Effective Date Through December 31, 2014
H.B. 289 also contains provisions applicable to JEDZs created or amended between the Bill’s effective date and December 31, 2014, which have lasting implications.
- During this period, any new JEDZ contract created or substantially amended must include an economic development plan for the Zone set forth within the terms of the JEDZ contract, along with a schedule for the implementation of new or expanded services, facilities or improvements in the JEDZ, or surrounding area.
- A seven-member joint economic development review council must be formed before the JEDZ contract, or substantial amendment thereto, is approved through legislative action of the contracting parties. The council will approve or disapprove the economic development plan, provide recommendations for better implementation of the plan, and evaluate the effectiveness of the JEDZ. If the council disapproves of the economic development plan, the JEDZ cannot be created. The council also prepares annual reports on the JEDZ. The county auditor of the county with the largest portion of the JEDZ territory serves as chairman of the council.
- For alternative JEDZs under R.C. 715.691, the Bill requires that 50% of the revenue from income taxes imposed by a JEDZ be dedicated to the provision of new, expanded or additional services as specified in the economic development plan.
- If the joint economic development review council determines in its annual report that the JEDZ contracting parties have not complied with the contract’s economic development plan or schedule for implementation of new, expanded or additional services, facilities or improvements, the Bill permits a private cause of action in common pleas court to terminate the municipal-only JEDZ or phase-out of the alternative JEDZ income tax.
At the Ohio Municipal League’s “Seminar for Newly Elected Council Members,” held on March 29, 2014 in Independence, Ohio,andnbsp;R. Todd Huntandnbsp;addressed the topic, “Home Rule and Local Control.”
In an article published in the Heights Observer and titled, “John Gibbon, longtime CH law director, retires,” author Deanna Bremer Fisher recognized John H. Gibbon for his long and distinguished service as law director for the City of Cleveland Heights, Ohio.
In an article published on cleveland.com on February 4, 2014, titled “Cleveland’s victory in Supreme Court reinforces home rule, but it’s not a breakthrough for cities, expert says,” R. Todd Hunt was quoted on the Ohio Legislature’s efforts, over the last few years, to limit “home rule” for cities.
On October 24, 2014,andnbsp;R. Todd Huntandnbsp;spoke on the topic, “Those Legal Cases That Affect the Way You do the Public’s Business,” at the 2014 Cleveland Planning and Zoning Workshop, sponsored by APA Cleveland, in Westlake, Ohio.
Much of eminent domain litigation focuses on disputes over property valuation. Generally, these disputes are resolved by the parties submitting expert testimony regarding valuation, followed by a jury deciding what constitutes “just compensation” for property taken and, if necessary, any residual damage to the private property not needed for the public project.
Recently, however, the 11th District Court of Appeals published an opinion in a case where a private property owner took a different approach to challenging valuation.
In Lawnfield Properties v. City of Mentor, the City of Mentor needed to “take” a portion of land owned by Lawnfield Properties for a road widening project. The City secured an appraisal of Lawnfield’s land and provided it to Lawnfield along with a “good faith offer” to acquire Lawnfield’s land. Lawnfield rejected the City’s offer, taking the position that the City’s offer failed to compensate them for residual damage to their property. Specifically, Lawnfield argued that the City’s offer failed to compensate them for the relocation of a sign, the loss of parking spaces in a parking lot, the loss of a curb cut, and a temporary loss of the outdoor patio and swimming pool.
After Lawnfield rejected the City’s offer, the City filed a lawsuit in Lake County Probate Court to appropriate the property. Lawnfield responded by filing a lawsuit in Lake County Common Pleas Court. Lawnfield wanted the court to issue an injunction prohibiting the City from litigating the appropriation case until the City obtained an amended appraisal that accounted for the residual damage to Lawnfield’s property. Lawnfield also sued the City under a theory that it was acting in bad faith by failing to provide a good faith offer that accounted for the residual damage to the property.
The City asked the Common Pleas Court to dismiss Lawnfield’s case. The City argued that Lawnfield’s injunction action was merely a challenge to the city’s valuation method, not grounds for a separate injunction action. With respect to the bad faith action, the City argued that its appraiser determined that there was no damage to the residue of Lawnfield’s property, and as such, the City could not have acted in bad faith.
The trial court granted the City’s motion to dismiss. Lawnfield appealed the case to the Court of Appeals. Then, the 11th District affirmed the trial court’s decision, finding that probate courts have jurisdiction over challenges to the methodology used in determining the amount of compensation payable to a private property owner in an eminent domain action.
Lawnfield is significant because it makes clear that, although there are procedural and substantive defenses available in eminent domain actions, a challenge to an appropriating authority’s valuation methodology ultimately must be decided by a jury in the probate court.
Walter | Haverfield represents both appropriating agencies and private property owners in eminent domain litigation. If you need assistance with appropriating private property for a public project, or if your private property is being taken for a public project, the attorneys in Walter | Haverfield’s public law group are available to offer assistance.
Many political subdivisions in Ohio have credit card use policies to ensure that credit card accounts are only used for authorized purchases and to establish procedures for the issuance, management, use, and cancellation of credit card accounts. These policies will need to be reviewed and updated to comply with a new Ohio law (House Bill 312) that became effective this month and which is aimed at fighting credit card abuse in Ohio’s local governments. The main provisions of the bill are outlined below:
- By February 2, 2019, the legislative authority of political subdivisions that hold credit card accounts must adopt a written policy for the use of credit card accounts.
- The credit card use policy must include provisions addressing the following:
- The officers or positions authorized to use a credit card account.
- The types of expenses for which a credit card account may be used.
- The procedures for the acquisition, use, and management of a credit card account and presentation instruments related to the account including cards and checks.
- The procedures for submitting itemized receipts to the fiscal officer or the fiscal officer’s designee.
- The procedure for credit card issuance, reissuance, cancellation, and the process for reporting lost or stolen credit cards.
- The political subdivision’s credit card account’s maximum credit limit or limits.
- The actions or omissions that qualify as misuse of a credit card account.
- The name of the political subdivision must appear on each presentation instrument related to the account, including cards and checks.
- If the fiscal officer does not retain general possession and control of the credit card account, then the legislative authority must appoint a compliance officer. The fiscal officer or compliance officer and the legislative authority must, on a quarterly basis, review the number of cards and accounts issued, the number of active cards and accounts issued, and the cards’ and accounts’ expiration dates and credit limits.
- The fiscal officer must annually report to the legislative authority all rewards received based on the use of the credit card.
- An officer or employee “is liable in person” and upon any bond the officer or employee has given to the political subdivision to reimburse the treasury for any amount for which he/she fails to provide itemized receipts as required by the credit card use policy.
- Use of a credit card for expenses not authorized by the legislative authority constitutes misuse of a credit card account, and knowingly making unauthorized purchases is illegal.
- The new law expressly prohibits the “possession or use of a debit card account” except for law enforcement purposes; however, this prohibition does not apply to debit card accounts related to the receipt of grant moneys.
- These requirements apply to the following governmental entities: the legislative authority of a political subdivision; a board of township trustees; a board of park commissioners of a township park district; a legislative authority of a municipal corporation; supervisors of a soil and water conservation district; a board of park commissioners; a board of directors of a county agricultural society or an independent agricultural society; a board of education of any school district; the governing authority of a community school; the government body of a STEM school; the board of trustees of a college-preparatory boarding school; a board of library trustees; a board of trustees of a regional water and sewer district.
- In addition to the foregoing, the law permits the state auditor to publish the financial reports filed by local governments so that they are readily available to the public.
While many political subdivisions already have credit card use policies, it is important to review your policy to make sure it complies with the requirements of the new law. Also, talk to your fiscal officer, finance director or treasurer to develop a plan for adopting a credit card use policy and implementing the review and reporting requirements as described above.
Aimee W. Lane is a partner in the Public Law practice group of Walter | Haverfield providing general and special counsel services to municipalities. She is currently the law director of the Village of Moreland Hills and the zoning solicitor of the Village of Put-in-Bay. For more information about this article, please contact Aimee at 216-928-2985, firstname.lastname@example.org.
Sara Fagnilli, an attorney in the firm’s Public Law group, is in Serial, a podcast that shares stories from inside the Cuyahoga County courthouse during its third season. Fagnilli was the special prosecutor in the controversial case of Euclid resident, Erimius Spencer. The details of Spencer’s case, Fagnilli’s role in it and the outcome are all explained in episode seven.
In Ohio, public agencies are required to make many of their working documents available for public inspection or copying upon request. The Ohio Public Records Act makes it clear that, with few exceptions, the public records process must be both transparent and timely. Public agencies are frequently asked to balance their limited resources with their duties under the law. But when a public records request arrives that seems vague or unreasonable, public agencies need to know their rights as well as their obligations.
Under Ohio law, if a public agency cannot respond to a request because it is too broad or vague, they must notify the requester and give them a chance to revise the request before denying it. But what happens if the requester doesn’t know the document they’re looking for? A simple and effective way to help them narrow down their search is to provide them with a copy of the public agency’s Records Retention Schedule, or RC2 form. The RC2 should show exactly what categories of records are kept and the length for which they are kept. By law, all public agencies are required to have a master list of the public records they maintain, as well as how long they keep them before disposal.
When requests arrive that are worded so broadly or vaguely that there’s no way to reconcile them, a timely and clear response to the requester will go a long way. That will establish a record that the agency met its obligation to notify the requester. Often some requests arrive that are multi-layered and contain multiple sub-parts. It may not be possible to write out all the agency’s questions and requests for clarifications within a reasonable time period. But even a general notice, coupled with a request for clarification to the requester, shows that the public agency is acting in good faith and working toward a version of the request that it can fulfill.
Case law suggests that public records requests are not invalid just because they ask for a large volume of documents. At the same time, courts recognize that larger requests justify a longer response time. The earlier the agency can determine how reasonable a request is, the more options it will have for how to respond or defend its decision to deny the request. Public records training sessions with staff members who may be locating responsive documents will reduce the risk of internal confusion and delay.
Keeping these tips in mind when responding to a request will help ensure you can get responsive documents in the hands of the requester without straining your resources. Be sure to discuss specific concerns about public records requests with your agency’s legal counsel.
John Mills is an attorney at Walter | Haverfield who has extensive experience with public records requests and works with our firm’s Public Law and Education Law practice groups. He can be reached at email@example.com or at 216-619-7852.
The Cincinnati Enquirer is reporting that the city of Cincinnati has agreed to settle a public records lawsuit arising out of a text chain. The text chain is among five Cincinnati City Council members where the public officials discussed public business. It is well-settled law that discussions by a majority of the members of a public body, which take place in emails, texts or tweets, constitute a public meeting [White v. King, 147 Ohio St.3d 74, 2016-Ohio-2770 (2016)]. Therefore, the council members’ text chain violated Ohio’s Open Meetings Act. Further complicating the matter, one council member deleted his texts from his phone, thereby creating a separate violation of Ohio’s Public Records Act.
The settlement calls for the city to pay $1,000 as a statutory penalty for the public meetings violation, $10,000 for the deleted text messages and (remarkably) $90,0000 in attorney fees related to the lawsuit.
Cincinnati’s settlement of this case should serve as a reminder to public officials that texts, tweets or emails can be a public meeting, and they must conduct themselves accordingly. Furthermore, the case should serve as a reminder that when such violations occur, the public can be on the hook for a hefty legal bill.
Ben Chojnacki is an attorney with Walter | Haverfield’s public law group who counsels municipalities, public entities and private corporations on all aspects of public law. He can be reached at firstname.lastname@example.org or at 216-619-7850.
Walter | Haverfield attorney Todd Hunt offers his perspective in Crain’s Cleveland Business about an Ohio bill aimed at curtailing what some cities consider price gouging over water and sewer service rates.