State lawmakers have been busy crafting new legislation since the 133rd General Assembly took shape in January.  As promised, here are some highlights and summaries of the pending bills that relate to agriculture in Ohio:

• Senate Bill 57, titled “Decriminalize hemp and license hemp cultivation.”  The Ohio Senate Agriculture and Natural Resources Committee held a second hearing about the bill on March 13th, and numerous farm organizations spoke in support of the bill.  As of now the language of the bill has not changed since we last discussed Ohio’s hemp bill in a blog post, but some changes could be made when the bill is sent out of the committee.  Click HERE for more information about the bill, and HERE for the current official bill analysis.

• Senate Bill 2, titled “Create state watershed planning structure.”  The one sentence bill expresses the General Assembly’s intent “to create and fund a comprehensive statewide watershed planning structure to be implemented at the local soil and water conservation district level.”  It further expresses the intent “to provide authorization and conditions for the operation of watershed programs implemented by local soil and water conservation districts.”  Click HERE for more information about the bill.

• House Bill 24, titled “Revise humane society law.”  The bill would make various changes to Ohio’s Humane Society Law, including changes to enforcement powers, appointment and removal procedures, training, and criminal law applicability.  One of the significant changes would expand to all animals the seizure and impoundment provisions that currently apply only to companion animals.  This change would allow an officer to seize and impound any animal that the officer has probable cause to believe is the subject of a violation of Ohio’s domestic animal law.  At the same time, the bill would remove certain provisions from current law that pertain to harm to people, thereby focusing the new law solely on the protection of animals.  Click HERE for more information about the bill, and HERE for the current official bill analysis.

• House Bill 124, titled “Allow small livestock on residential property.”  Under this bill, counties and townships would no longer be allowed to restrict via zoning certain noncommercial agricultural activities on residential property conducted for an individual’s personal use and enjoyment.  Instead, owners of residential property that is not generally agricultural would be allowed to keep, harbor, breed, and maintain small livestock on their property.  Small livestock includes goats, chickens and similar fowl, rabbits, and similar small animals.  Roosters are explicitly excluded from this definition.  However, the owner would lose his or her rights to keep small livestock if the small livestock create a nuisance, are kept in a manner that causes noxious odors or unsanitary conditions, are kept in a building that is unsafe as defined under the statute, or if the number of animals exceeds a certain ratio of animals to acres as defined under the statute.  The ratio may be modified by the local jurisdiction to allow for more animals per acre.  Click HERE for more information about the bill.

• House Bill 55, titled “Require oil and gas royalty statements.”  Owners of oil and gas wells would have to provide mandatory reports to holders of royalty interests under this bill.  Current law only requires disclosure of the information upon request, but this bill would make the disclosure mandatory.  The bill would expand the types of information that the reports must include, and allows the holder of royalty interests to sue to enforce the new rights.  Click HERE for more information about the bill, and HERE for the current official bill analysis.

• House Bill 94, titled “Ban taking oil or natural gas from bed of Lake Erie.”  The Ohio Department of Natural Resources handles oil and gas permitting in Ohio, and this bill would bar the agency from issuing permits or making leases “to take or remove oil or natural gas from and under the bed of Lake Erie.”  Click HERE for more information about the bill.

• House Bill 95, titled “Revise Oil and Gas Law about brine and well conversions.”  The bill would ban the use of brine in secondary oil and gas recovery operations.  It would also ban putting brine, crude oil, natural gas, and other fluids associated with oil and gas exploration in ground or surface waters, on the ground, or in the land.  This restriction would apply even if the fluid received treatment in a public water system or other treatment process.  Further, brine disposal permits would not be allowed to utilize underground injection or disposal on the land or in surface or ground water.  Click HERE for more information about the bill.

• House Bill 100, titled “Revise requirements governing abandoned mineral rights.”  Ohio has a statute that governs when a surface owner can take the mineral rights held or claimed by another by operation of law, essentially because of the passage of time.  The bill would require a surface owner to attempt to give notice to a holder of mineral rights by personal service, certified mail, or if those are unsuccessful then by publication.  Currently, if a holder of mineral rights believes that his or her interest remains valid, he or she may file an affidavit that complies with Ohio Revised Code (ORC) § 5301.56(H)(1) in the county property records.  If the holder of mineral rights fails to file an affidavit, the surface owner may then file an affidavit under ORC § 5301.56(H)(2) that effectively vests the mineral rights in the surface owner.  The new law would allow the surface owner to challenge a holder of mineral rights’ ORC § 5301.56(H)(1) affidavit.  This process would require the surface owner to obtain a court determination that the affidavit is invalid.  Then the surface owner would be able to file the new ORC § 5301.56(H)(3) affidavit to obtain the mineral rights.  Click HERE for more information about the bill.

There are also some bills that could have some indirect implications in the agricultural and natural resources sectors.  These indirect effects make this next set of bills noteworthy, or at least interesting.

• Senate Bill 1, titled “Reduce number of regulatory restrictions.”  The bill would require each state agency to count its total number of regulatory restrictions, and then reduce the number of restrictions based on that baseline by 30% by 2022.  Once an agency meets its reduction target, it would not be able to increase the number of regulatory restrictions without making additional cuts elsewhere.  The bill would target agency rules that require or prohibit specific acts.  Click HERE for more information about the bill, and HERE for the current official bill analysis.

• Senate Bill 21, titled “Allow corporation to become benefit corporation.”  Much like the LLC merged the principles of a corporation and a partnership, the benefit corporation merges the principles of a corporation and a non-profit.  A benefit corporation must follow the formalities of a corporation, but the articles of incorporation can designate a social purpose for the business to pursue, such as promoting the environment through sustainable practices.  One of the unique traits of benefit corporations is that benefit corporations cannot be held liable for damages for failing to seek, achieve, or comply with their beneficial purpose, or even obtain a profit; however, certain individuals may seek a court ordered injunction to force the company to pursue those interests.  In a sense, the benefit corporation reduces the traditional fiduciary duties expected in general corporations.  The bill purports to maintain the traditional fiduciary duties, but by allowing a social purpose other than profit to guide decisions, the traditional fiduciary duties are in effect modified.  Click HERE for more information about the bill, and HERE for the current official bill analysis.

• House Bill 33, titled “Establish animal abuse reporting requirements.”  Under the bill, veterinarians and social service professionals would have to report their knowledge of abuse, cruelty, or abandonment toward a companion animal.  Social service professionals would include licensed counselors, social workers, and marriage or family therapists acting in their professional capacity.  Companion animals include non-wild animals kept in a residential dwelling, along with any cats and dogs kept anywhere.  These individuals would be required to report the neglect to law enforcement, agents of the county humane society, dog wardens, or other animal control officers.  Further, dog wardens, deputy dog wardens, and animal control officers would become mandatory reporters of child abuse.  Lastly, the bill explains the information that must be reported, the timing, and the penalties for failure to comply.  Click HERE for more information about the bill, and HERE for the current official bill analysis.

• House Bill 48, titled “Create local government road improvement fund.”  The bill proposes to deposit into a new local government road improvement fund some of the surplus funds generated when the state spends less than it appropriates in the general revenue fund.  Under current law, this surplus is split between the budget stabilization fund, also known as the “rainy day fund,” and the income tax reduction fund, which would redistribute remaining surplus to taxpayers.  Click HERE for more information about the bill.

• House Bill 54, titled “Increase tax revenue allocated to the local government fund.”  The bill would increase the proportion of state tax revenue allocated to the Local Government Fund from 1.66% to 3.53%.  Click HERE for more information about the bill.

• House Bill 74, titled “Prohibit leaving junk watercraft or motor uncovered on property.”  The bill would allow a sheriff, chief of police, highway patrol officer, or township trustee to send notice to a landowner to remove a junk vessel or outboard motor within 10 days.  The prohibition applies to junk vessels, including watercraft, and outboard motors that are three years or older, apparently inoperable, and with a fair market value of $1,500 or less.  Failure to cover, house, or remove the item in ten days could result in conviction of a misdemeanor.  Click HERE for more information about the bill, and HERE for the current official bill analysis.

As more bills are introduced, and as these bills move along, stay tuned to the Ag Law Blog for updates.

We are full steam ahead in 2019, and so far we have held to our new year’s resolutions.  However, we want to take a quick look in the rearview mirror.  Ohio legislators passed a number of bills in 2018 that affect Ohio agriculture.  They range from multi-parcel auction laws to broadband grants, and oil & gas tax exemptions to hunting licenses.  Here are some highlights of bills that the Ohio General Assembly passed and former Governor Kasich signed in 2018.

• House Bill 500, titled “Change township law.”  As mentioned in a previous blog post, the Ohio General Assembly made a number of generally minor changes to Ohio’s township laws with House Bill 500.  The changes included, among other things, requiring a board of township trustees to select a chairperson annually, modifying how vacating township roads and name changes are carried out, allowing fees for appealing a zoning board decision, clarifying how a board can suspend a member of a zoning commission or board of appeals, and removing the requirement for limited home rule townships to submit a zoning amendment or resolution to a planning commission.  To learn about more of the changes that were made, visit the Ohio General Assembly’s H.B. 500 webpage here.
• House Bill 480, titled “Establish requirements for multi-parcel auctions.”  The Ohio Department of Agriculture regulates auctions, and H.B. 480 gave ODA authority to regulate a new classification of auctions: the multi-parcel auction.  Revised Code § 4707.01(Q) will define these as “any auction of real or personal property in which multiple parcels or lots are offered for sale in various amalgamations, including as individual parcels or lots, combinations of parcels or lots, and all parcels or lots as a whole.”  For more information, visit the Ohio General Assembly’s H.B. 480 webpage here.
• House Bill 522, titled “Allow outdoor refreshment area to include F permit holders.”  A municipality or township may create a “designated outdoor refreshment area” where people may walk around the area with their opened beer or liquor.  Previously, only holders of certain D-class permits (bars, restaurants, and clubs) and A-class permits (alcohol manufacturers) could allow their patrons to partake in a designated open area.  H.B. 522 will allow holders of an F-class liquor permit to also allow their patrons to roam in the designated area with an open container.  F-class liquor permits are for festival-type events of a short duration.  However, holders of either permits D-6 (allowing Sunday sales) or D-8 (allowing sales of growlers of beer or of tasting samples) will no longer be eligible for the open container exception.  For more information, visit the Ohio General Assembly’s H.B. 522 webpage, here.
• Senate Bill 51, titled “Facilitate Lake Erie shoreline improvement.”  As mentioned in a previous blog post, the primary purpose of Senate Bill 51 was to add projects for Lake Erie shoreline improvement to the list of public improvements that may be financed by a special improvement district.  S.B. 51 also instructed the Ohio Department of Agriculture (“ODA”) to establish programs to assist in phosphorous reduction in the Western Lake Erie Basin.  This adds to the previous instructions given to ODA in S.B. 299 regarding the Soil and Water Phosphorous Program.  S.B. 51 further provided funding for a number of projects, ranging from flood mitigation to MLS stadium construction.  For more information, visit the Ohio General Assembly’s S.B. 51 webpage here.
• Senate Bill 299, titled “Finance projects for protection of Lake Erie and its basin.”  Largely an appropriations bill to fund projects, S.B. 299 primarily targeted water quality projects and research.  ODA received an additional $3.5 million to support county soil and water conservation districts in the Western Lake Erie Basin, plus $20 million to establish water quality programs under a Soil and Water Phosphorous Program.  Further, the Ohio Department of Natural Resources (“ODNR”) received an additional $10 million to support projects that divert dredging materials from Lake Erie.  Stone Laboratory, a sea grant research program, received an additional $2.65 million.  The bill also created a mentorship program called OhioCorps, and set aside money for grants to promote broadband internet access.  For more information, visit the Ohio General Assembly’s S.B. 299 webpage here.
• Senate Bill 257, titled “Changes to hunting and fishing laws.”  ODNR may now offer multi-year and lifetime hunting and fishing licenses to Ohio residents under S.B. 257.  Further, the bill creates a resident apprentice senior hunting license and an apprentice senior fur taker permit, and removes the statutory limits on the number of these permits a person may purchase.  The bill also creates a permit for a Lake Erie Sport Fishing District, which may be issued to nonresidents to fish in the portions of Lake Erie and connected waters under Ohio’s control.  For more information, visit the Ohio General Assembly’s S.B. 257 webpage here.
• House Bill 225, titled “Regards plugging idle or orphaned wells.”  H.B. 225 creates a reporting system where a landowner may notify ODNR’s Division of Oil and Gas Resources about idle and orphaned oil or gas wells.  Upon notification, the Division must inspect the well within 30 days.  After the inspection, the Division must determine the priority for plugging the well, and may contract with a third party to plug the well.  To fund this, the bill increases appropriations to the Oil and Gas Well Fund, and increases the portion of the fund that must go to plugging oil and gas wells.  For more information, visit the Ohio General Assembly’s H.B. 225 webpage here.
• House Bill 430, titled “Expand sales tax exemption for oil and gas production property.”  Certain goods and services directly used for oil and gas production have been exempted from sales and use taxes, and H.B. 430 clarifies what does and does not qualify for the exemption.  Additionally, property used to control water pollution may qualify for the property, sales, and use tax exemptions if approved by ODNR as a qualifying property.  H.B. 430 also extends the moratorium on licenses and transfers of licenses for fireworks manufacturers and wholesalers.  For more information, visit the Ohio General Assembly’s H.B. 430 webpage here.
• Senate Bill 229, titled “Modify Board of Pharmacy and controlled substances laws.”  The Farm Bill’s opening the door for industrial hemp at the federal level has led to a lot of conversations about controlled substances, which we addressed in a previous blog post.  Once its changes take effect, Ohio’s S.B. 229 will remove the controlled substances schedules from the Ohio Revised Code, which involve the well-known numbering system of schedules I, II, III, IV, and V.  Instead, the Ohio Board of Pharmacy will have rulemaking authority to create schedules and classify drugs and compounds.  Prior to the removal of the schedules from the Revised Code, the Board of Pharmacy must create the new schedules by rule.  S.B. 229 also mentions cannabidiols, and lists them as schedule V under the current system if the specific cannabidiol drug has approval from the Food and Drug Administration.  For more information, visit the Ohio General Assembly’s S.B. 229 webpage here.

The end of 2018 effectively marked the end of the 132nd Ohio General Assembly, and 2019 marks the start of the 133rd Ohio General Assembly.  Any pending bills from the 132nd General Assembly that were not passed will have to be reintroduced if legislators wish to proceed with those bills.  Stay tuned to the Ag Law Blog for legal updates affecting agriculture from the Ohio General Assembly.

When you think of “agritourism,” corn mazes and hay rides may first come to mind.  While those activities can fall under Ohio's definition of agritourism, you may be surprised to find that farm markets, you-pick operations, farm tours, wineries and other types of farm-based activities can also fit into the legal definition of “agritourism” in Ohio.  This definition is important for purposes of Ohio’s agritourism immunity law, which can protect agritourism providers from liability for harm incurred during agritourism activities.  The law shifts the risk of liability from agritourism operators to the participants who willingly choose to engage in agritourism activities on a farm.

It's important to understand that in order to receive the law’s liability protection, each of the following conditions must exist:

Conditions for immunity from liability

1.  Qualify as an “agritourism provider.”    The law specifically protects only those who are “agritourism providers,” which means someone “who owns, operates, provides, or sponsors an agritourism activity, or an employee of such a person who engages in or provides agritourism activities, whether or not for a fee.   An important term within this definition is “agritourism,” which means “an agriculturally related educational, entertainment, historical, cultural or recreational activity, including you-pick operations or farm markets, conducted on a farm that allows or invites members of the general public to observe, participate in, or enjoy that activity.”  This definition can include a broad range of activities, such as wine tastings, educational classes, corn mazes and other recreational activities, farm tours, and farm festivals.  Note, however, that the agritourism definition requires that the activity be on a “farm,” which the law further defines as:

• At least ten acres of land (composed of tracts, lots, or parcels), that is used for “agricultural production,”  which means the land is used for “commercial aquaculture, algaculture, apiculture, animal husbandry, poultry husbandry; the production for a commercial purpose of timber, field crops, tobacco, fruits, vegetables, nursery stock, ornamental shrubs, ornamental trees, flowers, or sod; the growth of timber for a noncommercial purpose if the land on which the timber is grown is contiguous to or part of a parcel of land under common ownership that is otherwise devoted exclusively to agricultural use; or any combination of such husbandry, production, or growth; and includes the processing, drying, storage, and marketing of agricultural products when those activities are conducted in conjunction with such husbandry, production, or growth”  
• Or, less than ten acres of land if there is an average yearly gross income of at least $2,500 from “agricultural production” on the land. 

2.  Post required signs.  Every “agritourism provider” must “post and maintain” warning signs in order to receive the law’s liability protection.  The purpose of this provision is to inform participants that they are voluntarily assuming the risks of many of the harms that are inherent to being on a farm.  The warning signs or sign templates are available through OSU Extension South Centers and Ohio Farm Bureau.  Each sign must:

• Be placed in a clearly visible location at or near each entrance to the agritourism location or at the site of each agritourism activity;
• Contain the following statement, in black letters measuring at least one inch high:

WARNING: Under Ohio law, there is no liability for an injury to or death of a participant in an agritourism activity conducted at this agritourism location if that injury or death results from the inherent risks of that agritourism activity.  Inherent risks of agritourism activities include, but are not limited to, the risk of injury inherent to land, equipment, and animals as well as the potential for you as a participant to act in a negligent manner that may contribute to your injury or death.  You are assuming the risk of participating in this agritourism activity.

Immunity from what?

The agritourism immunity law states that an agritourism provider is immune, or protected from liability, in any civil action for an injury to a person participating in the agritourism activity as long as that person was injured due to a “risk inherent in an agritourism activity.”  An “inherent risk” is a “danger or condition that is an integral part of an agritourism activity,” that would be difficult for an agritourism provider to completely minimize.  According to the law, “inherent risks” include:

• The surface and subsurface conditions of the land;
• The behavior or actions of wild animals not kept by or under the control of an agritourism provider;
• The behavior or actions of domestic animals other than vicious or dangerous dogs;
• The ordinary dangers associated with structures or equipment ordinarily used in farming or ranching operations;
• The possibility of contracting illness resulting from physical contact with animals, animal feed, animal waste, or surfaces contaminated by animal waste;
• The possibility that a participant may act in a negligent manner, including by failing to follow instructions given by the agritourism provider or by failing to exercise reasonable caution while engaging in the agritourism activity that may contribute to injury to that participant or another participant. 

If a participant in an agritourism activity is harmed and sues the agritourism provider for injuries caused by any of the above situations, the law protects the provider from any liability or monetary responsibility for those injuries.  In addition, the law specifically states that an agritourism provider is not required to eliminate such inherent risks on the property. 

Exceptions to immunity

Although the agritourism immunity law provides civil immunity under certain circumstances, the immunity is not absolute.  The law also states that an agritourism provider could be legally responsible for injury to a participant if the agritourism provider:

• Fails to post and maintain signs (discussed above)
• Acts with a willful or wanton disregard for the safety of the participant,
• Purposefully causes harm to the participant,
• Acts or fails to act in a way that constitutes criminal conduct that causes harm to the participant,
• Has or should have actual knowledge of an existing dangerous condition that is not an inherent risk, and does not make the dangerous condition known to the participant. 

Use the agritourism law to your advantage

Agritourism activities can provide many benefits, such as additional income and diversification opportunities for farmers, unique cultural and recreational experiences for farm visitors and education about agriculture.  But there are always liability risks to having people on the farm, which can impact a farmer’s risk exposure.  Take advantage of the agritourism immunity law by ensuring that the operation qualifies for its provisions and does not fall within any of the exceptions from immunity protection.  Even with this liability protection, however, operators should continuously assess the property for safety risks to minimize the possibility of visitor injuries. 

The agritourism immunity law is in Ohio Revised Code section 901.80.  For further information, see our Agritourism Law Bulletin and a previous post, which also explain the agritourism law’s protections from county and township zoning for agritourism operations.

The first hearing for a bill that would limit legal liability for Ohio beekeepers took place this week before the House Economic Development, Commerce and Labor Committee. The bill’s sponsor, Rep. Dick Stein (R-Norwalk), offered several reasons for the proposal, including that beekeeping has recently grown in popularity along with increased demand for honey products, bees play an important role in pollinating plants and contribute to the agricultural economy, and beekeepers have incurred expenses defending themselves against lawsuits that are typically unsuccessful.

House Bill 392 aims to provide immunity from liability for any personal injury or property damage that occurs in connection with keeping and maintaining bees, bee equipment, queen breeding equipment, apiaries, and appliances, as long as the beekeeper does all of the following:

1. Registers the apiary with the Ohio Department of Agriculture, as is currently required by Ohio law;
2. Operates according to Ohio Revised Code Chapter 909, which contains provisions for apiaries;
3. Implements and complies with the best management practices for beekeeping as established by the Ohio State Beekeepers Association; and
4. Complies with local zoning ordinance provisions for apiaries. Note that zoning ordinances for apiaries would likely exist only in incorporated areas, as Ohio’s “agricultural exemption from zoning” prohibits townships and counties from using zoning to regulate agricultural activities like beekeeping in most situations.

A beekeeper would not have immunity from liability resulting from intentional tortious conduct or gross negligence, however.

The second hearing for the bill will take place on December 5, 2017. Information about the proposal is available here.