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Walter | Haverfield attorney Bill Hanna and former Walter | Haverfield attorney Jessica Trivisonno address how Ohio’s municipalities can regulate the impact of small cell wireless facilities in an article which appears in Cities and Villages magazine (pg. 18).
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:
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.
Bill Hanna is head of the Public Law group at Walter | Haverfield. He can be reached at whanna@walterhav.com or at 216-928-2940.
A new federal program that allows willing communities to serve as guinea pigs for futuristic drone operations is underway. Walter | Haverfield attorney Jessica Trivisonno explains “drone innovation zones” in the January/February issue of Ohio Township News.
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:
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 jneal@walterhav.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.
FURTHER APPEALS
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 sbungard@walterhav.com.
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:
The following circumstances can lead to the denial of benefits:
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.
Margaret O’Bryon is an attorney at Walter | Haverfield who concentrates on workers’ compensation law as well as public and employment law. She can be reached at 440-652-1173 or mobryon@walterhav.com.
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.
Benjamin Chojnacki is an attorney in our Public Law group. He can be reached at bchojnacki@walterhav.com and 216.619.7850.
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 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.
Jessica Trivisonno is an attorney in our Public Law group. She can be reached at jtrivisonno@walterhav.com and 216.619.7870