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OSU Agricultural & Resource Law Program at Farm Science Review ~ September 17-19, 2013. See http://fsr.osu.edu/. Ohio State Bar Association Agricultural Law Committee ~ fall meeting ~ date TBA in September, 2013. American Agricultural Law Association Annual Conference ~ October 31 -- November 2 in Madison, Wisconsin. Information is available on the AALA website. Ohio Agricultural Law Symposium 2014 ~ Friday, May 16, 2014. Location and program to be announced; check back for further details.
The question from a local official at a recent zoning workshop was "...doesn't a landowner need a certain amount of property to be considered agricultural for zoning purposes?" and the answer is quite simple: no. He was asking the question because Ohio law doesn't allow counties and townships to use their zoning authority to prohibit agricultural land uses, except in a few limited circumstances such as platted subdivision situations. But the law doesn't require a minimum amount of acreage to qualify the land as "agriculture"--any amount of land can be deemed agricultural as long as the use itself fits within the definition of agriculture provided by the zoning statute. And if the land use is within the definition of agriculture, then zoning can't prohibit it unless an exception applies. The confusion over this issue is understandable; I believe it originates with requirements for the Current Agricultural Use Valuation (CAUV) tax assessment program. CAUV participation requires a minimum of ten acres devoted to agricultural use, but less than ten acres will qualify for CAUV if the land is devoted to agricultural use and provided at least $2500 in average gross income over the prior three years. Whether or not land meets the CAUV acreage requirement, the land use can still be agricultural for zoning purposes if it fits within the definition of agriculture. For more on Ohio's rural zoning laws, visit our website's zoning library at http://aede.ag.ohio-state.edu/programs/aglaw/zoning_law.htm.
There's much debate about Ohio's Issue 2, a proposal regarding farm animal welfare. Below are answers to legal questions about Issue 2. Are there other unanswered legal questions? If so, let me know.
What is Issue 2?
Issue 2 is a ballot issue that Ohio voters will decide in the November 3, 2009 general election. The issue proposes an amendment to the Ohio Constitution that addresses the care of livestock in Ohio.
How did Issue 2 get on the ballot?
There are two ways to propose an amendment to the Ohio Constitution: by citizen initiative or by a joint resolution passed by Ohio’s legislature, the General Assembly. Both methods require that the proposal be placed on the ballot for majority approval by Ohio voters. Issue 2 arose through a joint resolution in the General Assembly. The Ohio House of Representatives and the Ohio Senate both approved the proposed constitutional amendment. As required by law, the Ohio General Assembly then submitted the enacted resolution to the Ohio Secretary of State, who chairs the Ohio Ballot Board. The five member Ballot Board reviewed the resolution and developed a summary of the joint resolution for the ballot. The Ohio Attorney General certified that the Ballot Board’s summary is an accurate depiction of the joint resolution, and the summary will appear as Issue 2 on the November 3, 2009 general election ballot. You may view the joint resolution passed by the Ohio legislators here, which is the actual language that would be included in the Ohio Constitution if approved on November 3, 2009. The Ballot Board’s summary of the joint resolution, which is the actual language that will appear on the ballot as Issue 2, is here. To learn more about the ballot initiative procedure in Ohio, visit this page.
Is a constitutional amendment the same as a law?
Yes. Ohio’s Constitution is one source of law; Ohio also has statutory law (the Ohio Revised Code), administrative law (agency rules), and common law (written court decisions). However, the Constitution is Ohio’s “supreme” law because it establishes the framework for Ohio’s governmental structure, sets forth powers of the government, provides for fundamental individual rights, and is difficult to change. Only a majority vote by Ohio voters can change the Ohio Constitution.
What does Issue 2’s proposed constitutional amendment do?
Issue 2 proposes to amend the Ohio Constitution by including language in the Constitution that:
- Creates an Ohio Livestock Care Standards Board that would have the authority to establish standards for livestock care in Ohio.
- Gives the Ohio Department of Agriculture the authority to oversee and enforce the livestock care standards.
- Grants the Ohio General Assembly the authority to enact laws necessary for creating the Livestock Care Standards Board and overseeing, implementing and enforcing its standards.
Who would be on the Ohio Livestock Care Standards Board?
Issue 2 establishes a thirteen member Livestock Care Standards Board. No more than seven members on the board may be of the same political party. The Ohio General Assembly would have the power to set the terms of office for the Board members and determine any conditions for the Board members' service. The proposal states that the Board would consist of:
- The director of the department of agriculture, who would serve as chair of the Board;
- Ten members appointed by the Governor with Senate approval, which must include: one family farm representative, one member knowledgeable about food safety in Ohio; two members representing statewide farmer organizations; one veterinarian licensed in Ohio; the State Veterinarian; the dean of an Ohio college or university’s agriculture department; two members of the public representing Ohio consumers; one member representing a county humane society
- One family farmer appointed by the Speaker of the Ohio House of Representatives.
- One family farmer appointed by the President of the Ohio Senate.
What is a “family farmer” for purposes of Issue 2?
Issue 2 does not contain a definition of “family farmer,” nor does Ohio’s statutory laws.
How would the Board create the livestock care standards?
Issue 2 does not specifically detail how the Livestock Care Standards Board would go about creating the livestock care standards, but it does state that when developing the standards, the Board must consider factors that include, but are not limited to, agricultural best management practices for such care and well-being, biosecurity, disease prevention, animal morbidity and mortality data, food safety practices, and the protection of local, affordable food supplies for consumers. Issue 2 also directs the Ohio legislature to enact laws to help the Board carry out its duties, which would allow the legislature to establish a process for the Board to follow when developing the livestock care standards.
Who would enforce the livestock care standards?
According to Issue 2, the state department that regulates agriculture (which is currently the Ohio Department of Agriculture) would have the authority to implement and enforce the standards developed by the Livestock Care Standards Board, and could create administrative rules and regulations necessary to do so.
How much will a Livestock Care Standards Board cost and how will it be funded?
The Office of Budget and Management has prepared a fiscal analysis for Issue 2. The analysis projects costs based upon similar Ohio boards and programs. OBM assumes that funding will derive from the state’s General Revenue Fund, since the proposal does not designate a funding source. See the OBM’s cost projections here.
Do other Ohio laws affect the care of farm animals?
Yes. Ohio currently has laws related to the care of domestic animals, commonly referred to as our animal cruelty laws. The laws prohibit acts such as torture; confinement without adequate shelter, fresh air, food or water; and unnecessary or cruel harm to an animal. Unless the Ohio General Assembly changes them, these laws will remain in effect and will apply to farm animals even if Issue 2 passes. The Ohio General Assembly could choose to amend the existing animal cruelty laws to include the livestock care standards developed by the Board. See Ohio’s animal cruelty laws here.
If Issue 2 passes, could it ever be changed?
Yes, but because Issue 2 proposes an amendment to the Ohio Constitution, it could only be changed by another proposed constitutional amendment that must be approved by Ohio voters.
How does Ohio’s Issue 2 differ from Proposition 2 that passed last year in California?
The ballot initiative known as Proposition 2 passed by California voters last fall amended California’s statutory law. It was not a constitutional amendment like Ohio’s Issue 2. The California law does not address the care of all livestock, but instead prevents certain actions for certain types of livestock. California’s law prohibits the tethering or confinement of pregnant hogs, veal calves and egg-laying hens in a way that prevents the animal from lying down, standing up, fully extending its legs or turning around freely for a majority of the day.
Could a ballot proposal like California’s Proposition 2 come to Ohio if Issue 2 passes?
In addition to allowing initiatives that amend the Constitution, Ohio law allows citizens to propose new statutory laws through the ballot initiative process. A person or group could use the ballot initiative to propose a law like California’s Proposition 2 in the future, and the proposal could be placed on the general election ballot for voter approval. If Issue 2 passes, however, a future ballot proposal that conflicts with Issue 2’s constitutional amendment could be challenged legally.
Do other states have laws like the one proposed by Issue 2?
A number of states have addressed the issue of farm animal care, but none have enacted a law similar to Ohio’s Issue 2. Rather, the laws follow California’s approach of prohibiting certain practices for certain types of livestock, such as egg-laying poultry, veal calves and pregnant hogs. Only Florida has enacted a constitutional amendment on farm animal care, and the Florida provision applies only to confinement of pregnant pigs. For links to other state laws on farm animal welfare, see our website at http://aede.osu.edu/programs/aglaw or visit Michigan State University’s Animal Legal & Historical Center at http://www.animallaw.info/.
This blog is an outreach project of the Agricultural & Resource Law Program at The Ohio State University, a program supported by OSU Extension. For additional resources from the program, visit go.osu.edu/aglaw.
One “trust mill” is on its way out of Ohio, thanks to a recent ruling by the Ohio Supreme Court. On October 14, 2009, the Court issued a hefty $6.4 million penalty against American Family Prepaid Legal Corp. and its affiliate, Heritage Marketing and Insurance Services, Inc. The Court barred the companies from doing business in Ohio. The California-based companies targeted elderly Ohioans by offering a full array of estate planning services that would allegedly minimize estate probate costs. Non-attorney salespeople contacted elderly persons and marketed a $1,995 prepaid estate plan, which essentially amounted to one living trust. Upon delivery of the living trust to client homes, the salespersons also marketed insurance products. The sales were high-pressure, according to the Court. Credit must be given to the Columbus Bar Association for pursuing the case. After receiving repeated complaints about the companies, the CBA investigated and determined that the companies were condoning the unauthorized practice of law. While an attorney in California drafted the trust documents, non-attorney salespersons interacted with the clients, provided legal information, and answered legal questions. The Supreme Court had no sympathy for the companies and their sales scheme, and accurately described the “trust mill” issue that causes much frustration and concern in the legal profession. Said the court:
"A living-trust package is often not needed and may even be harmful for persons who are without significant assets, who have simple estates, or whose estates may need court supervision. A basic living-trust package...may even be insufficient and completely inappropriate for those having more substantial assets and who may need specific legal advice and even tax advice to meet their needs. ... [t]hese enterprises, in which the laypersons associate with licensed practitioners in various minimally distinguishable ways as a means to superficially legitimize sales of living-trust packages, are engaged in the unauthorized practice of law...by facilitating such sales, licensed lawyers violate professional standards of competence and ethics."
A misfortune of the case is that the companies have declared bankruptcy and ceased operations. The Columbus Bar Association is exploring whether it can collect the fine from another insurance company owned by the father-son team behind the defunct companies. The CBA hopes to distribute any amounts it collects back to victims of the trust scam. To read the court's opinion, visit here.