Did you know that the Florida Panther is the last subspecies of Mountain Lion found east of the Mississippi River? The Florida Panther is an endangered species with an estimated population of under 100 panthers. As bleak as it may seem, things may be looking up for the Florida Panther to make a roaring comeback (which is ironic because Florida Panthers can’t roar).
Like the Florida Panther, we have prowled agricultural and resource issues from across the country. Topics include a historic move by Florida to protect its wildlife and natural resources, agritourism getting a boost in Pennsylvania, Colorado’s livestock industry receiving a lifeline, and USDA efforts to expand broadband and water quality initiatives.
Florida makes conservation history. Florida has recently enacted a new law known as the Florida Wildlife Corridor Act (the “Act”). The Act creates a wildlife corridor that will connect Florida’s large national and state parks and create an unbroken area of preserved land that stretches from the Alabama state line all the way down to the Florida Keys. Specifically, the Act looks to protect about 18 million acres of habitat for Florida’s wildlife. The Act seeks to prevent wildlife, like the Florida Panther, from being cut off from other members of its species, which is a main driver of extinction. The Act also aims to protect Florida’s major watersheds and rivers, provide wildlife crossings over and/or under major highways and roads, and establish sustainable practices to help working ranches, farms and, forests that will be vital to ensuring the success and sustainability of the wildlife corridor. The Act goes into effect July 1 and provides $400 million in initial funding to help purchase land to create the corridor.
Pennsylvania provides protection for agritourism operators. Pennsylvania Governor, Tom Wolf, signed House Bill 101 into law. Like Ohio’s law, House Bill 101 shields agritourism operators from certain lawsuits that could arise from circumstances beyond their control. House Bill 101 prevents participants in an agritourism activity from suing the agritourism operator if the operator warns participants of the inherent risks of being on a farm and engaging in an agritourism activity. An agritourism operator must: (1) have a 3’ x 2’ warning sign posted and notifying participants that an agritourism operator is not liable, except under limited circumstances, for any injury or death of a participant resulting from an agritourism activity; and (2) have a signed written agreement with an agritourism participant acknowledging an agritourism operator’s limited liability or have specific language printed on an admission ticket to an agritourism activity that notifies and warns a participant of an agritourism operator’s limited liability. House Bill 101, however, does not completely shelter agritourism operators. An agritourism operator can still be liable for injuries, death, or damages arising from overnight accommodations, weddings, concerts, and food and beverage services. The enactment of House Bill 101 will help to protect farmers from costly and unnecessary lawsuits and provide additional sustainability to Pennsylvania’s agritourism industry.
Colorado Supreme Court strikes proposed ballot initiative seeking to hold farmers liable for animal cruelty. The Colorado Supreme Court issued an opinion removing Initiative 16, also known as the Protect Animals from Unnecessary Suffering and Exploitation Initiative (“PAUSE”), from voter consideration. Initiative 16 sought to amend Colorado law and remove certain agriculture exemptions from Colorado’s animal cruelty laws. Initiative 16 intended to set limitations on the slaughter of livestock and to broadly expand the definition of “sexual act with an animal” to include any intrusion or penetration of an animal’s sexual organs, which opponents of the initiative have argued would prohibit artificial insemination and spaying/neutering procedures. The Colorado Supreme Court found that the initiative violated Colorado’s single-subject requirement for ballot initiatives and therefore, was an illegal ballot initiative. The court argued that the central theme of the initiative was to incorporate livestock into Colorado’s animal cruelty laws. However, because the initiative redefined “sexual act with an animal” to include animals other than livestock, the court concluded that the ballot initiative covered two subjects, not one. The court reasoned that because the initiative addresses two unrelated subjects, voters could be surprised by the consequences of the initiative if it passed, which is why Colorado has single-subject requirement for ballot initiatives.
USDA announces dates for Conservation Reserve Program (“CRP”) signups. The USDA set a July 23 deadline for agricultural producers and landowners to apply for the CRP General and will also be accepting applications for CRP Grasslands from July 12 through August 20. Through the CRP General, producers and landowners establish long-term conservation practices aimed at conserving certain plant species, controlling soil erosion, improving water quality, and enhancing wildlife habitat on cropland. CRP Grasslands helps landowners and producers protect grasslands including rangeland, pastureland, and certain other lands, while maintaining grazing lands. To enroll in the CRP, producers and landowners should contact their local USDA Service Center.
USDA expands CLEAR30 initiative nationwide. The USDA announced that landowners and agricultural producers currently enrolled in CRP now have an opportunity to sign a 30-year contract through the Clean Lakes, Estuaries, and Rivers Initiative (“CLEAR30”). CLEAR30 was created by the 2018 Farm Bill to address water quality concerns and was originally only available in the Great Lakes and Chesapeake Bay watersheds. Now, producers and landowners across the country can sign up for CLEAR30. Eligible producers must have certain water quality improvement practices under a continuous CRP or under the Conservation Reserve Enhancement Program (“CREP”) and contracts that are set to expire on September 30, 2021. The USDA hopes that by expanding the initiative, it will enable more producers to take conservation efforts up a level and create lasting impacts. CLEAR30’s longer contracts help to ensure that conservation benefits will remain in place longer to help in reducing sediment and nutrient runoff and reducing algal blooms. To sign up, producers and landowners should contact their local USDA Service Center by August 6, 2021.
Three federal agencies enter into agreement to coordinate broadband funding deployment. The Federal Communications Commission (“FCC”), the USDA, and the National Telecommunications and Information Administration (“NTIA”) entered into an agreement to coordinate the distribution of federal funds for broadband development in rural and underserved areas. In an announcement released by the USDA, Secretary Vilsack stressed the importance of broadband in rural and underserved communities. Lessons learned from the COVID-19 Pandemic have made access to broadband a central issue for local, state, federal and Tribal governments. The goal is to get 100% of Americans connected to high-speed internet. As part of the signed agreement, the agencies will share information about existing or planned projects and identify areas that need broadband service in order to reach the 100% connectivity goal. Visit the USDA’s Rural Development Telecom Programs webpage to learn more about the USDA’s efforts to provide broadband service in rural areas.
When does the business of hosting weddings on a farm qualify as “agritourism” under Ohio law? That was the question faced by Ohio’s Second District Court of Appeals in a legal battle between Caesarscreek Township and the owners of a farm property in Greene County. The answer to the question is important because local zoning can’t prohibit the hosting of weddings and similar events if they fall under Ohio’s definition of “agritourism.” Those that don’t qualify as “agritourism” are subject to local zoning prohibitions and regulations. According to the court’s recent decision, the determination depends largely upon the facts of the situation, but merely taking place on an agricultural property does not automatically qualify a wedding or event as “agritourism.”
The case regards the Lusardis, who own a 13.5 acre property in Caesarscreek Township containing a pole barn and outbuilding, a one-acre pond, several acres of woods, and an eight acre hayfield on which the Lusardis had produced hay for several years. Their plan was to offer corn mazes, hayrides and celebratory events like weddings and receptions on the property. To do so, the Lusardis had to demonstrate to the township’s Board of Zoning Appeals (BZA) that their activities fit within Ohio’s definition of “agritourism” and thus must be allowed according to Ohio law. That definition in ORC 901.80 states:
“Agritourism 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.”
In applying the definition of agritourism to its local zoning, Caesarscreek Township requires an agritourism provider to explain how the “educational, entertainment, historical, cultural or recreational” activities it plans to offer are “agriculturally related” to the property and the surrounding agricultural community. In their agritourism application with the township, the Lusardis explained that guests could use the property to celebrate an agriculturally themed event, enjoy the scenery, hay fields and woods, learn about plants and wildlife, have bonfires, play corn hole, fish, and get married outside, in the woods, or in the hayfield. The township zoning inspector, however, testified to the BZA that he did not see a relationship between weddings and receptions and the Lusardi property itself. A wedding or reception would not have a “basic relationship” to the existing agricultural use of the property or the surrounding area and the agricultural use of the property was incidental, at best, to the wedding and reception business, argued the zoning inspector.
The township BZA agreed with the zoning inspector. It determined that the Lusardi’s corn maze and hayride activities qualified as agritourism, but held that any celebratory events such as weddings would not be “agriculturally related” to the property and thus did not fit within the definition of agritourism and could not take place on the property. The Lusardis appealed the BZA’s decision to the Greene County Court of Common Pleas, whose duty under Ohio law was to determine whether the BZA’s conclusion was “unconstitutional, illegal, arbitrary, capricious, unreasonable or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record.” The common pleas court found the BZA’s conclusion reasonable and upheld the decision. The BZA’s determination that weddings don’t bear a general relevance to agriculture was understandable, whereas corn mazes and hay rides do bear a reasonable relationship to agriculture, the court stated.
The Lusardis appealed the common pleas court decision to the Ohio Court of Appeals. Its duty in reviewing the case was to determine whether the common pleas court had abused its discretion by making a judgment on a question of law that is “unreasonable, arbitrary or unconscionable.” The appellate court concluded that the common pleas court had not abused its discretion by affirming the BZA decision. Agreeing that it was reasonable for the BZA to conclude that the celebratory events were not sufficiently related to the agricultural property, the court stated that “just because an activity is on agricultural property does not make it “agritourism” and is not, by itself, enough to make the activity “agriculturally related.”
The “what does ‘agriculturally related’ mean?” question is one we’ve pondered since the Ohio legislature created the definition of agritourism in 2016. An important rule to draw from this case is that the answer must be made on a case-by-case basis. The Lusardis asked the court of appeals to decide whether any celebratory event on an agricultural property would be agriculturally related and would therefore constitute “agritourism” as a matter of law, but the court refused to do so. “Whether a particular activity constitutes “agritourism” is an issue that shades to gray quite quickly,” stated the court. “Given the great variety of factual situations, we decline to rule on whether celebratory events constitute “agritourism” as a matter of law.”
Also noteworthy is the court’s attention to the BZA’s analysis of the activities that were to take place on the Lusardi property. The BZA pointed to a lack of evidence that any crops or flowers grown on the property would be used in the events. Also remiss was evidence that the only agricultural crop grown on the property—hay—was somehow connected to the celebratory events that would take place. The court observed that these evidentiary flaws supported the BZA’s conclusion that the Lusardis were proposing an event venue with an incidental theme rather than an agricultural activity with an incidental event.
Wedding barn issues have been a cause of controversy in recent years. The Lusardi v. Caesarscreek Township decision follows an Ohio Supreme Court case earlier this year regarding whether a wedding barn fit within the agricultural exemption from zoning for buildings and structures used “primarily for vinting and selling wine.” In that case, the Supreme Court determined that making and selling wine was the primary use of the barn and that weddings and events were incidental, yet were related to the production because event guests had to purchase the wine produced at the farm. Taken together, these cases illustrate the importance Ohio’s agricultural zoning exemption places on production activities. Where agricultural goods are being produced and sold, additional incidental activities such as celebratory events that are related to agricultural production will likely fall under the agricultural exemption. But as the Lusardi case illustrates, local zoning may prohibit celebratory events that don’t have a clear connection to agricultural production and instead appear to be the primary rather than incidental use of the property.
Read the case of Lusardi v. Caesarscreek Township Board of Zoning Appeals here.
It wasn’t that long ago that “agritourism” was an unfamiliar term to in the agricultural community. But agritourism has been on the rise in the U.S. and agritourism income tripled between 2002 and 2017. Many farmers and ranchers are now familiar with the economic benefits agritourism presents. Along with the agritourism industry’s continued growth and prospects, however, has been an evolution of laws and legal issues.
Join me with OSU Extension Educators Eric Barrett and Rob Leeds on August 19, 2020 for a free webinar on "The Evolution of Agritourism: Current Legal Issues and Future Trends," hosted by the National Agricultural Law Center. We’ll examine opportunities in agritourism today and the legal challenges agritourism faces from COVID-19 and other anticipated legal issues. Here's what we'll cover:
- What’s new and hot: agritourism marketing trends and opportunities
- In the courts: litigation against agritourism operations
- COVID-19: legal issues for agritourism
- What may come: anticipated legal challenges for the future
- How to deal with it: thoughts on managing agritourism legal risk
Additional information and a registration link for the webinar are available at https://nationalaglawcenter.org/webinars/agritourism2020/. If you can't make the live webinar, visit the same page later for a recorded version.
Who knew wedding barns could lead us to the Ohio Supreme Court? Such is the case for a longstanding controversy over a barn in Medina County. Litchfield Township so opposed the use of the barn for weddings that it initiated a lawsuit and eventually appealed the case to Ohio’s highest court. In a unanimous decision issued today, the court ruled against the township and in favor of the wedding barn.
The case revolves around Forever Blueberry Barn, LLC (“Blueberry Barn”), whose owners built a barn in 2015 in Litchfield Township. The owners’ plans were to host weddings and other social events in the barn. The owners believed their use qualified the barn as "agriculture" under Ohio’s broad “agricultural exemption” from zoning authority. The township thought differently, and claimed that the use was not agriculture and instead violated the township’s residential district zoning regulations. The township sought an injunction to prevent weddings and events from taking place in the barn.
The Medina County Court of Common Pleas issued the injunction against Blueberry Barn, agreeing that the barn did not qualify as agriculture under the agricultural exemption. But the court later withdrew the injunction upon receiving evidence that the owners of Blueberry Barn had planted grape vines on the property. Doing so constituted “viticulture," which is within the definition of “agriculture” for purposes of the agricultural exemption, the court determined.
On an appeal by the township, however, the Ninth District Court of Appeals concluded that the trial court should have examined whether the barn itself was being “used primarily for the purpose of vinting and selling wine.” Ohio’s agricultural exemption prevents townships from using zoning authority to prohibit the use of land for “agriculture,” which includes viticulture, and also states that townships can’t prohibit the use of buildings or structures “used primarily for vinting and selling wine and that are located on land any part of which is used for viticulture.…” The appellate court said that a determination must be made at the trial level whether the wedding barn structure was “used primarily” for wine vinting and sales.
At its second trial court hearing, Blueberry Barn brought forth evidence that it produced and stored wine and winemaking equipment in the barn. Blueberry Barn also explained to the court that persons could only rent the wedding barn if they purchased wine from Blueberry Barn. Based on this evidence, the trial court concluded that the primary use of the barn was for vinting and selling wine. On a second appeal by the township, the Ninth District Court of Appeals agreed with the trial court’s judgment. The township appealed yet again, this time to Ohio’s Supreme Court.
The issue before the Court focused on one word in the agricultural exemption: primarily. In order for the agricultural exemption to apply, the wedding barn must be used primarily for vinting and selling wine. The agricultural exemption does not define the word primarily, so the Court looked to the ordinary dictionary meaning of the word “primary,” which is “of first rank, importance, or value.” The Court reminded us that whether a use is primary is a question of fact to be determined by the trial court.
The township argued that the trial court’s conclusion that vinting and selling wine was the primary use of the barn was incorrect, because only 4% of the barn’s physical space involved vinting and selling wine. The Supreme Court disagreed with such a conclusion, and clarified that “primary” does not mean “majority.” The Court stated that the amount of space or time devoted to vinting and selling wine would not determine whether the use is “primary.” It would not be unreasonable for a new winery producing limited quantities of wine in its early stages of production to use its barn space for other purposes, reasoned the Court.
One never knows when the Buckeyes will pop up in a conversation or even a court case, and it happened in this one. In a teaching moment, the Supreme Court used Ohio Stadium to illustrate its interpretation of the word “primary.” It would be hard to argue that football is not the primary use of Ohio Stadium even if the stadium holds 20 events a year and only 7 of those events are for Buckeye football, the Court explained. The same concept applies to determining the primary use of a barn. Additionally, the Court pointed to the fact that only those who purchased wine from Blueberry Barn could use the facility for weddings or events as further support for the trial court’s factual determination that wedding rentals contributed to the barn’s primary use of vinting and selling wine. The Court affirmed the ruling in favor of Blueberry Barn, bringing an end to the six-year wedding barn controversy.
I’ve taught zoning law and Ohio’s agricultural exemption for many years. One question I’ve received hundreds of times is this: how do we know which use of a structure is “primary”? The Court’s decision today sheds light on this seemingly minor but highly relevant question. The answer is one that helps us interpret not only the “used primarily for vinting and selling wine” language in the agricultural exemption, but also relates to additional provisions that apply to “agritourism” structures. Several references in the agricultural exemption prohibit zoning regulation over buildings “used primarily” for agritourism. When next asked what “primary” means, I can now refer to the new “primary-use test” created today by the Supreme Court: primary does not mean majority, but does mean of first rank, importance, or value. That’s a primary contribution to Ohio’s agricultural zoning law.
Read the Ohio Supreme Court's decision in Litchfield Twp. Bd. Of Trustees v. Forever Blueberry Barn, L.L.C. here.
Whether we’re ready or not, Labor Day traditionally marks a transition from summer to fall. Pumpkin flavored everything will soon be available at a coffee shop and restaurant near you, and Ohio’s agritourism farms will surely be busy.
Whether you are just getting your agritourism farm up and running, or a seasoned agritourism veteran, it never hurts to take a moment to think about your liability risks. The OSU Extension Agricultural & Resource Law Program has developed a number of resources, available on our publications webpage, that can help you think about ways to minimize the legal risks to you and your farm. These resources include:
- Ohio’s Agritourism Law – Ohio law grants liability protection for personal injuries suffered while participating in an agritourism activity. It also provides for special taxation and zoning of lands where agritourism activities occur. This law bulletin explains what your farm needs to do to be covered by the immunity, and how much protection it provides. Click HERE to read the law bulletin.
- Farm Animals and People: Liability Issues for Agritourism – Farm animals can be a valuable attraction for an agritourism operation, but having people and animals interact on the farm creates liability risks. This factsheet explains a range of animal liability risks and provides a checklist to think about what you can do to reduce the risk of injury to your visitors, as well as reduce the risk of a lawsuit. Click HERE to read the factsheet.
- Agritourism and Insurance – Even with immunity laws in place, a farmer must carefully consider the farm’s insurance needs and ensure that it has adequate coverage. This factsheet explains agritourism insurance, why it may be needed, and more. It also provides a checklist that may help an agritourism farmer make sure that certain important insurance questions are addressed before an accident occurs. Click HERE to read the factsheet.
- Agritourism Immunity Laws in the United States – Many states, including Ohio, have taken steps to encourage agritourism by providing agritourism farms with some degree of immunity to liability. We explain Ohio’s law more in depth in our law bulletin titled “Ohio’s Agritourism Law,” but this factsheet compares approaches taken in other states and provides a checklist that helps an agritourism farm think about how much protection it has under these laws. Click HERE to read the factsheet.
- Agritourism Activities and Zoning – Zoning is a force to be reckoned with in many states, but many states, including Ohio, have taken steps to encourage agritourism through zoning regulations. This factsheet explains how zoning and agritourism interact across the country, including an explanation of Ohio’s current approach. Click HERE to read the factsheet.
- Youth Labor on the Farm: Laws Farmers Need to Know – Many Ohio agritourism farms provide employment to youth, who are able to learn about agriculture, business, and customer service through working at the farm. Those hiring youth under the age of 18 want to make sure that they are following federal and Ohio labor laws. Our latest law bulletin explains the youth labor laws that are unique to agriculture. Click HERE to read the factsheet.
Food sales present some special issues that you will want to think about if you wish to sell food at your farm. Depending upon the foods you sell, you may have to obtain a retail food establishment license for food safety purposes. The following resources can help you think through the steps you must take to sell food at your agritourism farm:
- Food Sales at Agritourism Operations: Legal Issues – Whether you sell fresh produce, cottage foods or baked goods, or prepare and serve food on-site, there are legal risks and requirements that may come into play. This factsheet explains some of the legal issues you should consider before selling food at your farm, and provides a checklist of things to consider before you begin selling food. Click HERE to read the factsheet.
- Selling Foods at the Farm: When Do You Need a License? – This Ohio-specific factsheet explores farmers, including those operating an agritourism farm, need to register or obtain a license in order to sell food at the farm. Click HERE to read the law bulletin.
Beyond our website, many of our peers at OSU Extension have developed a number of helpful resources for agritourism farms. OSU Extension’s Agritourism Ready webpage, which you can access at u.osu.edu/agritourismready/, is designed to be a one stop shop for preparing an emergency management plan. You can also read factsheets on Ohioline related to agritourism ranging from “Creating Signage for Direct Food and Agricultural Sales” to “Grants and Low-Interest Loans for Ohio Small Farms,” and “Maps, Apps and Mobile Media Marketing” to “Selling Eggs in Ohio: Marketing and Regulations.”
As new legal issues arise, we will continue to create resources that help farmers understand and mitigate their risk. In the meantime, we wish everyone a fun and safe fall at Ohio’s agritourism farms.
Agritourism continues to boom across the United States, with agritourism farms offering activities from apple picking to zip lining. Literally A to Z. Consumer interest in food and farming, along with an economic need to augment farm income through diversification, have combined to drive this boom. As more farms delve into agritourism, their liability risks change. Risk and liability are hard, if not impossible, to totally eliminate, but there are a number of steps that agritourism farms can take to reduce the chances of something bad happening.
Based upon the questions generated from our law bulletin on Ohio’s agritourism law, we wanted to take an in depth look at common legal issues and risks facing agritourism. Created as part of a project for the Agricultural & Food Law Consortium, our new factsheet series does just that. Specifically, these factsheets examine:
- Legal risks of animal and human interactions
- Selling food on the farm
- Agritourism immunity laws across the country
- Zoning laws across the country
- Insurance coverage for agritourism
Each factsheet addresses common considerations and questions about starting and operating an agritourism farm, and provides links to helpful resources. The factsheets are designed to have something for everyone in the industry. From those just thinking about implementing agritourism who need to think about the basic risks, to those agritourism farms that are already well established and want a risk refresher. Beyond the industry, those professionals who advise agritourism farms may find the considerations helpful.
Most of the new factsheets include a checklist. The checklists include questions that an agritourism farmer should ask their attorney, zoning inspector, insurance provider, local health department, and more. The checklists do not represent the only legal concerns that an agritourism farm must think about, but rather a starting point. Every agritourism farm is unique, and must be treated as such when examining liability and risk.
The reducing legal risk in agritourism project is available on our website HERE, as well as the National Agricultural Law Center’s website HERE. This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.
Written by Evin Bachelor, Law Fellow and Sr. Research Associate
We’re back from another successful Farm Science Review! Thank you to everyone who stopped by our booth to ask us questions and pick up law bulletins. We received some great suggestions on new topics affecting agricultural law, so stay tuned as we post more to our Ag Law Blog and Law Library in the near future.
Here’s our gathering of ag law news you may want to know:
ODA reviews meat inspection rules. Ohio’s meat inspection rules are up for review under the state’s Five-Year Review requirement. The Ohio Department of Agriculture (ODA) recently posted the proposed changes to Ohio Administrative Code 901:2-1; 901:2-3; 901:2-6; and 901:2-7 for stakeholder comment on its website. The primary changes to the substance of the rules are meant to bring them into compliance with new federal requirements that took effect earlier this year. ODA also proposes to merge the interstate and intrastate regulations, which could change some rule numbers, but not necessarily their substance. ODA will be accepting comments until Monday, October 1, 2018, which stakeholders may submit to AGReComments@agri.ohio.gov.
OSU explains tariff relief program and impacts. Our good friend and economist Ben Brown and other policy experts in OSU's College of Food, Agricultural, and Environmental Sciences recently published information that explains and analyzes the USDA’s response to the tariffs. View a brief brochure that explains the Market Facilitation Program here. View a longer report on the Market Facilitation Program and the impacts on farm income in Ohio here .
U.S. EPA petitions for new hearing on Chlorpyrifos registrations. A panel of three judges on the U.S. Court of Appeals for the Ninth Circuit in San Francisco ordered the U.S. Environmental Protection Agency (EPA) to cancel chlorpyrifos registrations in August. The judges cited scientific evidence that the chemical insecticide causes developmental defects in children. The U.S. Department of Justice (DOJ), on behalf of the U.S. EPA, filed a petition on Monday, September 24th, requesting an en banc hearing on the decision. If granted, an en banc hearing would involve all the judges who serve on the Ninth Circuit, rather than only the three judges who initially ordered the cancellation of the registrations. The U.S. DOJ argues that the August decision was incorrect and that the court should allow the U.S. EPA to reconsider the insecticide’s registration. For more details, check out The Progressive Farmer’s post here.
License needed to broker oil and gas leases in Ohio. On Tuesday, September 25th, the Ohio Supreme Court decided that oil and gas leases fall within the statutory definition of “real estate.” As such, a person who offers and negotiates an oil and gas lease must have a real estate broker’s license under Ohio Revised Code § 4735.01(A) and § 4735.02(A). Check out Court News Ohio’s webpage for more details.
No "bill of rights" vote for Lake Erie. The group Toledoans for Safe Water sought to put a “Lake Erie Bill of Rights” on the ballot this November as an amendment to the Toledo City Charter. The amendment would have stated that Lake Erie and its watershed “possess the right to exist, flourish, and naturally evolve,” and that the citizens of Toledo have a right to a clean and healthy environment. Enforcement would have been through a mix of revoking corporate licenses and privileges or criminal penalties if violated. Despite having enough signatures, the Lucas County Board of Elections refused to place the issue on the ballot, saying that the amendment contained provisions beyond the City of Toledo’s authority. The dispute made it up to the Ohio Supreme Court, which on Friday, September 21st, decided that Toledoans for Safe Water failed to prove that the Lucas County Board of Elections improperly denied their petition to place the issue on the ballot. The court’s decision is here.
Iowa court makes owner liable for corporate liabilities. An Iowa Court of Appeals decision recently allowed a plaintiff who was suing a biosolids management corporation to “pierce the corporate veil” and collect directly from the sole owner of the corporation. The plaintiff obtained a judgment of $410,067 against the corporation for breach of contract after the corporation stopped performing its work. However, the plaintiff could not collect against the corporation, and an Iowa Court of Appeals decided that the sole owner must pay the judgement. The court said that the owner did not conduct the business or maintain its finances in a manner that demonstrates the existence of a separate legal entity from himself or his other businesses. The owner co-mingled corporate and personal assets and accounts, failed to keep records, and had no bylaws or meeting records. For more on the case, visit the Iowa State University’s Center for Agricultural Law and Taxation website here, or view the case opinion here.
California passes "home cooked food" law. California's governor signed a bill into law last Friday that allows cities and counties to authorize and permit residents to operate “microenterprise home kitchens.” Assembly Bill 626 exempts qualifying businesses from some food service facility regulations to allow residents to sell prepared food from their home, while also recognizing the differences between a home kitchen and a commercial kitchen. To qualify, among other things, the operation can have no more than one full-time non-family employee, the food must be sold direct to the customer, and no more than 60 individual meals can be prepared per week. The bill’s full text and legislative analysis are here.
Barn wedding popularity continues to grow. Fifteen percent of weddings in the United States took place in a barn last year, according to a survey published by the wedding planning site The Knot. In comparison, only two percent of weddings took place in a barn as recently as 2009. The popularity of wedding barns has become a point of contention in many states, including Ohio, because statutory zoning exemptions for agriculture have been used to exempt wedding barns from zoning requirements. We explain Ohio's zoning exemption for "agritourism" in this law bulletin.
Ohio legislation on the move:
- Ohio Senate refers township bill to committee. The Ohio House of Representatives passed House Bill 500 earlier this summer, and the bill has recently been referred to the Ohio Senate’s Local Government, Public Safety, and Veterans Affairs Committee. House Bill 500 proposes to make a number of changes to Ohio’s township statutes, including a change to agricultural zoning regulations. If passed as-is, the bill would allow a township to use zoning to regulate agricultural activities within any platted subdivision. Under current law, townships are limited to a specified list of platted subdivisions that townships may regulate; however, the new law clarifies that the specified list is not intended to be exclusive. For more information on the bill, view the bill analysis produced by the Ohio Legislative Service Commission, or visit the Ohio General Assembly’s website here.
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.