The nation is slowly reopening. Businesses showcase signs that proudly announce “OPEN” in bright neon letters. But the legal landscape is different from the pre-COVID-19 days, and businesses should be aware of the inherent risks involved with re-opening and take the utmost care to ensure employee and customer safety to avoid or minimize government intrusion, investigation, and prosecution for running afoul of the post-COVID-19 legal landscape.

Ohio started reopening in April of 2020, but Ohio’s approach to reopening is not novel: the State wields potential prosecutorial punishment for businesses in violation of the appropriate regulations. Thus, examining Ohio’s investigative and enforcement mechanisms provides helpful insight to how other jurisdictions will handle reopening when it occurs.

A New Normal: Responsible RestartOhio Regulations

On April 27, 2020, Ohio Governor Mike DeWine announced Ohio’s “Responsible RestartOhio” campaign.[1] The campaign focuses on guiding businesses—from restaurants to daycares—on safely reopening their doors to customers based on each business’s specific business sector.[2]

The Ohio Department of Health (“ODH”) promulgated the RestartOhio Regulations (“RestartOhio Regulations”).[3] Therefore, the RestartOhio Regulations carry the force of an order by the ODH.[4] These regulations provide advisory best practices, but also include mandatory practices that certain businesses must adopt.[5]

All-Access Investigation

RestartOhio focuses on compliance, using an “all-access” investigation approach to further that goal.

First, law enforcement enforces the RestartOhio Regulations. Under Ohio law, “police officers [and] sheriffs . . . shall enforce quarantine and isolation orders, and the rules” adopted by the ODH and may be the primary method of ensuring compliance with the RestartOhio Regulations.[6]

Second, with respect to certain businesses,[7] Governor DeWine created an enforcement team under Ohio’s Department of Public Safety’s Ohio Investigative Unit (“OIU”) to enforce the regulations.[8] “OIU agents are fully-sworn plainclothes peace officers responsible for enforcing Ohio’s alcohol, tobacco and food stamp fraud laws.”[9]

Third, citizens are encouraged to report non-compliance to the ODH. The ODH relies on citizens’ and law enforcement agencies’ complaints. Thus, a business not complying with the RestartOhio Regulations could be reported to the ODH at any time by anyone.[10]

Amicable Resolutions and Mitigating Government Intrusion

First-time offenders are unlikely to suffer harsh sanctions, but criminal prosecutions are possible. The ODH prefers to call or visit a business to investigate alleged non-compliance and advise it of best practices instead of penalizing it. Therefore, a business’ first sign of governmental scrutiny could be interacting with the ODH.[11] Businesses within the OIU’s oversight, however, could face steeper penalties. The OIU regularly hands out citations for violations of Ohio liquor laws[12] and for “improper conduct” occurring at a bar or restaurant.[13] In fact, dozens of Ohio restaurants have already suffered such a fate in metropolitan areas like Cleveland and Cincinnati.[14] Such “improper conduct” may include violations of the RestartOhio Regulations,[15] and cited businesses may be prosecuted[16] or become embroiled in “show cause” hearings to explain why their liquor license should not be revoked by the Ohio Liquor Control Commission.[17]

Governor DeWine tasked the ODH, the OIU, and local law enforcement with referring habitual offenders for criminal prosecution. Defiance of a lawful order by the ODH is a Second-Degree Misdemeanor which carries a maximum fine of $750 per violation.[18] An OIU agent walking into a crowded, habitually-offending bar could document ten violations of employees not wearing face coverings and refer the matter to a prosecutor. That bar could suffer a $7,500 penalty from a single OIU visit.

Conclusion

Ohio businesses operating in a post-COVID-19 world must be aware of the RestartOhio Regulations. Law enforcement and citizens will be watching for violations. Ohio businesses must implement at least the minimum RestartOhio Regulations and should consider implementing optional best practices as well. Adopting these best practices will further an argument that any violation was a one-time mistake rather than an example of habitual non-compliance and will help each business do its part to protect its community.

Ohio’s paradigm may be the roadmap of other jurisdictions. As more states enter reopening stages and embrace varying degrees of open and closed, citizens and businesses will see similar investigative and enforcement mechanisms nationwide. Businesses must familiarize themselves with their state’s regulations and ensure compliance to avoid government intrusion.

[1]  See Governor DeWine Announces Details of Ohio’s Responsible RestartOhio Plan, https://governor.ohio.gov/wps/portal/gov/governor/media/news-and-media/covid19-update-april-27

[2]  The campaign may be found at https://coronavirus.ohio.gov/wps/portal/gov/covid-19/responsible-restart-ohio/

[3]  See, i.e., Director’s Dine Safe Ohio Order, June 5, 2020 (https://coronavirus.ohio.gov/static/publicorders/dao-Reopens-Restaurants-Bars.pdf). This is an example of the RestartOhio Regulations governing bars and restaurants. Other sectors of business have their own RestartOhio Regulations which are located online at the ODH’s website and the Governor DeWine’s website.

[4]  See Director’s Stay Safe Ohio Order, April 30, 2020 (https://coronavirus.ohio.gov/static/publicorders/Directors-Stay-Safe-Ohio-Order.pdf); see also R.C. § 3701.13; see also R.C. § 3701.56.

[5]  See, i.e., Restaurants, Bars, and Banquet & Catering Facilities/Services, https://coronavirus.ohio.gov/static/responsible/Restaurants-and-Bars.pdf

[6]  See R.C. 3701.56

[7]  These businesses include all businesses that either possess an Ohio liquor license, accept food stamps, or sell tobacco products.

[8]  See https://www.fox19.com/2020/05/18/watch-live-gov-dewine-gives-update-states-coronavirus-response/

[9]   https://www.oiu.ohio.gov/oiu-about.aspx#gsc.tab=0

[10]  See https://www.cincinnati-oh.gov/health/covid-19/business-compliance/ (Cincinnati’s local Department of Health’s citizen’s complaint resource)

[11]  See Scant Follow-Through on COVID Complaints; Authorities Rely Mostly on Voluntary Compliance, Cinn. Enq. June 2, 2020, p. A1

[12]  See R.C. §§4301 et seq. and 4303 et seq.

[13]  See O.A.C. § 4301:1-1-52 (prohibiting, inter alia, actions which “harass, threaten or physically harm another person.”

[14]  Twelve bars and restaurants in Cleveland recently saw the OIU in action when the OIU cited bars and restaurants, including Put-in-Bay, for violations of the RestartOhio Regulations. See https://www.wkyc.com/mobile/article/news/health/coronavirus/12-businesses-cited-for-not-enforcing-coronavirus-safety-guidelines/95-c7d2e311-c355-4fa9-a961-7307d87f9bd8

[15]  OIU agents have cited at least two bars with “improper conduct” for violations of the RestartOhio Regulations. See https://www.13abc.com/content/news/Investigators-issue-citations-for-restaurantbar-COVID-violations-570778821.html.

[16]  See R.C. § 4301.10(A)(4) (the Ohio Division of Liquor Control shall “[e]nforce the administrative provisions of [R.C. §§ 4301 et seq. and 4303 et seq.], and the rules and orders of the [L]iquor [C]ontrol [C]ommission and the superintendent relating to the manufacture, importation, transportation, distribution, and sale of beer or intoxicating liquor. The attorney general, [and] any prosecuting attorney . . . shall, at the request of the division of liquor control or the department of public safety, prosecute any person charged with a violation of any provision in those chapters. . . .”).

[17]  See R.C. § 4301.252 (options to pay forfeitures in lieu of suspending operations of liquor sales in certain circumstances); see also O.A.C. § 4301:1-1-65 (proceedings before the Liquor Commission).

[18]  See R.C. 3701.571.