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By: Peggy Kirk Hall, Wednesday, January 29th, 2014

Ohio farms that complement their agritourism activities with inflatable "bounce houses" and slides for kids to play on will soon be subject to new safety standards proposed by the Ohio Department of Agriculture (ODA).  Based on its authority to inspect "amusement rides," ODA is proposing the regulations to ensure public safety through minimum standards for the operation and use of inflatable devices. 

Inflatables haven't always been subject to ODA's "amusement ride" oversight.  The Ohio legislature amended the definition of "amusement rides" in 2011 to include "inflatable devices," which gave ODA the added responsibility of inspecting and permitting the bounce houses.  The  regulations now proposed by ODA will provide safety standards that operators must meet before receiving a permit to operate an inflatable.

According to the proposal, owners or operators of inflatable amusement devices:

  • Shall have the manufacturer's specifications on hand and available for ODA at the time of an inspection.
  • Shall not inflate a device with flammable gases.
  • May vary from the manufacturer's operating instructions or make alterations to the inflatable's design, only by doing the following:

1) Obtaining written permission for the variance or alteration from the manufacturer;

2)  Submitting the written permission from the manufacturer to the department for approval; and

3)  Being reinspected by ODA to ensure compliance with the revised manufacturing instructions or specifications.

ODA seeks comments on the proposed safety standards by February 18, 2014; learn more by visiting here.

By: Peggy Kirk Hall, Friday, January 24th, 2014

The Ohio Senate has approved a bill directing the Ohio Department of Agriculture (ODA) to establish a fertilizer applicator certification program in Ohio.  The sponsors of Senate Bill 150, Senator Cliff Hite and Senator Bob Peterson, designed the legislation to address agricultural nutrient runoff into Ohio waterways and the algae problems in Grand Lake St. Marys and Lake Erie.  According to Senator Hite, the bill hinges on a new education and certification program that will give farmers additional information about fertilizer and nutrient use best practices.    

Here are answers to a few basic questions farmers might have about the proposed program:

When would the program begin?  If the bill is passed by the Ohio House of Representatives, the fertilizer application certification program would begin on September 30 on the third yearsfollowing the law’s effective date.   

Who would have to be certified?  Someone who applies “fertilizer” for agricultural production on land more than 50 acres in size would have to be certified by ODA as a fertilizer applicator, or would have to be acting under the instruction of a certified fertilizer applicator. 

Would there be any exemptions from the program?  Those who would make applications of fertilizer on land parcels of 50 acres or less would be exempt from the certification requirement.  The bill would also allow the ODA director to establish additional exemptions for certain persons or certain “types of cultivation.”

What fertilizers would the program cover?  Under the bill, “fertilizer” means any substance containing nitrogen, phosphorus, or potassium or any recognized plant nutrient element or compound that is used for its plant nutrient content or for compounding mixed fertilizers.  The definition of fertilizer does not include lime, manure and residual farm products such as bedding, wash waters, waste feed, silage drainage and certain dead animal composts, unless those are mixed with fertilizer materials or distributed with a guaranteed analysis.

What would the certification program involve?  The Senate’s bill directs that the program must educate applicants on the time, place, form, amount, handling, and application of fertilizer—commonly referred to as the "4-Rs" of nutrient stewardship (right fertilizer source at the right rate, at the right time and in the right place).  The bill also states that the program must "serve as a component of a comprehensive state nutrient reduction strategy addressing all sources of relevant nutrients" and must "support generally practical and economically feasible best management practices."

Would there be a certification fee?  The bill allows the ODA to establish a fee for applicants who seek certification, but the fee may not exceed the fee charged for the state’s pesticide applicator certification program.  Additionally, the bill exempts persons who hold an Ohio commercial or private pesticide applicator’s license from paying an additional application fee if they also seek fertilizer application certification.

Other important provisions in Senate Bill 150 include:

Recordkeeping requirements.  Certified applicators would have to maintain fertilizer application records for at least three years from the date of a fertilizer application.  The records must include the date, place and rate of application, an analysis of the fertilizer and the name of the person applying the fertilizer.  Applicators would not be required to submit the records to ODA on a regular basis, but would have to make the records available upon a request by the agency.

Emergency revocation and suspension powers.  The bill would allow the ODA director to immediately deny, suspend, revoke, refuse to renew or modify a fertilizer applicator certificate if there is "substantial reason to believe the certificate holder recklessly applied fertilizer in such a manner that an emergency exists that presents a clear and present danger to human or animal health."

Voluntary Nutrient Management Plans.  The bill would allow a person who owns or operates agricultural land to develop a voluntary nutrient management plan in collaboration with Ohio State University, the Soil and Water Conservation District or the Natural Resource Conservation Service or its certified providers and submit the plan for approval by the Soil and Water Conservation District.  A voluntary nutrient management plan would be an important critieria for immunity from civil liability, discussed below.

Legal Defense against Civil Actions.   Under the bill, a person sued in a claim involving liability for an application of fertilizer would have a legal defense that would prevent liability upon showing these three criteria:

  • The person is a certified fertilizer applicator or under the control of a certified applicator;
  • The person properly maintained fertilizer application records as required by the certification program;
  • The fertilizer was applied according to and in substantial compliance with an approved voluntary nutrient management plan.

Watch now for the agricultural nutrient management bill to be introduced in the Ohio House of Representatives for final approval.  More information about S.B. 150 is available here.

By: Caty Daniels, Wednesday, January 15th, 2014

Author: Peggy Kirk Hall, Asst. Professor, Agricultural & Resource Law

A farm lease is a valuable transaction for landowners and farm operators alike, so it is important to ensure that the lease conforms to Ohio’s legal requirements. Here’s what Ohio law requires for creating a legally enforceable lease:
 
The lease must be in writing. Enforcing a verbal farm lease is very difficult in Ohio due to our “Statute of Frauds.” The statute states that a lease of land must be in writing to be legally enforceable in Ohio. Despite this law, many verbal farm leases do exist. If a problem arises under a verbal farm lease, the law would not uphold the verbal lease unless a party could prove that the court should grant an exception from the Statute of Frauds writing requirement. This is a risky position and forces a party to go to court simply to try to prove that there is a valid lease.
 
The lease must identify the land. Include the legal description, address and acreage of the land parcel.
 
Both parties should sign the lease. Ohio law requires that the landowner must sign the lease, and Ohio’s Statute of Frauds states that a lease agreement is not enforceable against a party who did not sign the lease. So that the lease is enforceable against both landlord and operator, both should sign the lease.
 
The lease must properly name the parties and all owners. Be sure to list all owners, using the proper legal names or business names. In the case of joint landowners, such as a married couple or partnership, both owners must sign the lease. If an LLC or similar business entity owns the land, the business entity should be the named party entering into the lease, and the individual who signs
the lease on behalf of the entity must have legal authority to do so.
 
A lease over three years must be acknowledged. Parties to a lease of more than three years must have their signatures acknowledged and certified by a notary public or local official such as a judge, mayor or clerk of court.
 
The parties should file a memorandum of lease. Ohio law requires that the lease transaction be filed with the county recorder in the county where the land exists, which gives notice of the lease arrangement to potential purchasers and others. Rather than requiring the parties to divulge all details of the lease, the law allows the parties to file a shortened “memorandum of lease” that must include names and addresses of each party, a legal description of the land, the lease period and rights of renewal.
 
The terms of a farmland lease are also important. For information on terms and other lease issues, refer to our other resources on farmland leasing.
Posted In: Property
Tags: farm lease, farmland lease, enforceable lease
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