Recent Blog Posts
A recent decision by the Ohio Court of Appeals examines the issue of employer liability for a worker’s harmful acts. The Twelfth District Court of Appeals clarified when an employer could be liable for injuries caused by a worker’s violent behavior, whether the worker is an independent contractor or an employee.
Worker’s violent behavior leads to a lawsuit
The Spurlocks hired Mr. Hogeback to perform carpentry worker when renovating their farmhouse into a bed and breakfast. While working for the Spurlocks, Hogeback got into an altercation with an employee of a construction company that was also performing work on the Spurlock property. Mr. Jackson, who was visiting the site to inquire about work, stepped in to prevent the fight and was injured by Hogeback.
Jackson brought suit against Hogeback and also against the Spurlocks and their business, alleging assault and battery, negligence, vicarious liability and negligent hiring, supervision and retention. A jury ruled in Jackson’s favor for the claims against Hogeback, but the Butler County Court of Common Pleas granted Spurlocks’ request to release all claims against them and not allow the claims to be decided by the jury.
The case goes to the Court of Appeals
Jackson appealed the trial court’s decision in regards to the Spurlocks, arguing on appeal that the Spurlocks were vicariously responsible for Hogeback’s actions as their employee and also that the Spurlocks were directly liable for failing to exercise reasonable care in controlling Hogeback and for negligent hiring, supervision and retention of Hogeback.
The Twelfth District Court of Appeals reviewed the decision to determine whether the trial court had properly relieved the Spurlocks from liability. The court quickly narrowed its focus to the claim of negligent hiring, supervision and retention, holding that the trial court was correct in regards to all other claims against the Spurlocks.
Liability for negligent hiring, supervision and retention
A claim of negligent hiring, supervision and retention can create liability for selecting or allowing a person to work when the employer knows or should have known of the hired individual's violent or dangerous propensities. Under this theory, Jackson had to show that the Spurlocks knew or should have known of Hogeback’s violent propensities and should have foreseen the assault on Jackson.
The court of appeals dispensed with the Spurlocks’ arguments that they should not be liable under this claim because Hogeback was an independent contractor rather than an employee. Liability for negligent hiring, supervision and retention can arise regardless of whether the assailant is an employee or an independent contractor, said the court.
According to the court of appeals, a review of the court record showed that Jackson had presented evidence that the Spurlocks may have had knowledge of Hogeback’s propensity to use physical violence. Testimony that Mrs. Spurlock had stated "this has happened before," and "oh, no, not again" when she learned of the fight; that workers had complained to the Spurlocks about Hogeback’s “aggressive and rude behavior”; and that Mrs. Spurlock had attempted to arrange for the workers who complained about Hogeback to be on the property when Hogeback would not be there all pointed to a possibility that the Spurlocks may have known of and anticipated problems from Hogeback’s dangerous propensities. Given this evidence, the court of appeals concluded that the common pleas judge should have allowed the jury to render a verdict on the issue.
The court of appeals sent the case back to the common pleas court for further proceedings to determine whether there was sufficient evidence on the issue of negligent hiring, supervision and retention.
Implications for employers
We state as a general rule that employers are not usually liable for intentional, harmful acts of an employee when those acts are outside of the employee’s work responsibilities. The Hogeback v Jackson case is a reminder of exceptions to the general rule:
- A successful claim of negligent hiring, supervision and retention can result in employer liability for a worker’s bad acts, which requires proof that an employer knew or should have known about the worker’s dangerous propensities and it was foreseeable that the worker’s behaviors could lead to harm.
- Negligent hiring, supervision and retention can apply even if an independent contractor, rather than an employee, commits the harmful acts.
Employers can reduce this risk of liability by using practices and policies to help prevent the hiring and retention of a person who poses risks of harm to others:
Investigation into a potential employee or independent contractor’s background through these tools:
- Job applications that request detailed information about previous employment, reasons for leaving a job, and employer contact information.
- Reference checks with previous employers and other references.
- Background checks. See the Ohio Attorney General’s information about conducting a background check.
- Drug tests. Ohio law allows for private companies to conduct drug testing on a non-discriminatory basis. The Ohio Bureau of Workers’ Compensation offers a Drug-Free Safety Program for eligible employers.
Detection of and reaction to worker behaviors:
- Monitoring for incidents of unusual, violent or dangerous behaviors.
- Encouraging employees to report dangerous behaviors in other workers.
- Policies for corrective actions to take, including termination, upon awareness of dangerous behaviors.
- Prompt enforcement of all practices and policies.
Read the Court of Appeals decision in the Jackson v. Hogeback case here.
Larry Gearhardt, OSU Extension Asst. Professor, Taxation
Ohio Governor John Kasich recently signed a bill that, among other things, increases the small business income deduction from 50 percent to 75 percent of the first $250,000 in net business income.
In an effort to grow Ohio’s economy, last year the Ohio budget bill included significant tax law changes to deliver a $2.7 billion tax cut to individuals and businesses, over the course of three years. The changes included:
- A small business tax cut that enables owners/investors to deduct from taxable income 50 percent of the first $250,000 in net business income.
- A 10 percent personal income tax cut to be phased in over three years. In 2013, Ohio tax rates were reduced by 8.5 percent.
- New assistance for lower-income Ohioans in the form of an Earned Income Tax Credit (EITC) equal to five percent of the amount claimed for the federal EITC.
An improving economy is generating stronger than expected state revenue, resulting in additional tax cuts. The Governor’s Mid-Biennium Review (HB 483) included the following additional tax relief:
- ADDITIONAL SMALL BUSINESS TAX CUTS – For tax year 2014, the personal income tax deduction on small business income will be increased to 75 percent of the first $250,000 in net business income. (Under current law, the deduction does not affect the school district income tax base).
- ACCELERATING THE INCOME TAX CUT – Next year’s scheduled one percent cut in income tax rates is moving up to be effective retroactive to January 1, 2014. This change will give taxpayers the full 10 percent income tax cut that was not scheduled to go into effect until January 2015.
- NEW TAX RELIEF FOR LOW-AND MIDDLE-INCOME OHIOANS – Ohio is doubling the EITC from 5 to 10 percent of the federal credit. In addition, the state is increasing the personal exemption for Ohioans earning less than $40,000 a year from $1700 to $2200, and for those with incomes between $40,000 and $80,000 a year from $1700 to $1950.
Business income is defined as income from the regular conduct of a trade or business, including gains and losses. It also includes gains and losses from liquidating a business or selling goodwill. The deduction applies only to the business income apportioned to Ohio under existing law.
The business deduction percentage reverts back to 50 percent for taxable years after 2014.
The recently enacted Water Resources Reform and Development Act of 2014 established a new mandate to the U.S. EPA: change how EPA enforces the federal Spill Prevention, Control and Countermeasure (SPCC) rule against the nation’s farms. Following several years of conflict between EPA and the agricultural community, Congress intervened with a plan to reduce the SPCC rule’s impact on agriculture. The new law clarifies which farms must have certified SPCC plans that address fuel storage and spill response practices; the law also directs EPA to study and adjust the exemption levels within the next three years.
Which farms must comply with the SPCC rule?
Here is an explanation of how the new law affects SPCC rule requirements for farms. Note that the exemption level could change after EPA conducts its required study, explained below.
- Farms that must have a professionally certified SPCC plan
Farms in this category must have an SPCC plan that is certified by a professional engineer. This category includes farms that have any of the following:
- An individual aboveground tank with storage capacity over 10,000 gallons;
- An aggregate aboveground storage capacity of 20,000 gallons or more;
- A "reportable oil discharge history."
- Farms that can self-certify their SPCC plans
Farms with moderate fuel storage and no history of reportable discharges must have an SPCC plan, but the owner or operator of the farm can self-certify the plan. Farms in this category include those that:
- Have an aggregate aboveground storage capacity of 6,001 to 20,000 gallons
- And do not have a "reportable oil discharge history."
- Farms that are exempt from SPCC compliance
The EPA may not require compliance with the SPCC rule for any farm that:
- Has an aggregate aboveground storage capacity of less than 6,000 gallons.
Changes to aggregate capacity calculations will affect SPCC's reach
The new law also changes which fuel storage containers a farm must include when calculating its aggregate fuel storage capacity. This change could significantly impact whether a farm falls into the exempt, self-certified or professionally certified plan category. Previously, the SPCC rule required a farm to include any storage container of 50 gallons or more in its aggregate capacity calculation. Under the new law, a farm may now exclude these fuel storage containers from its calculation of capacity:
- All containers on separate parcels that have a capacity of 1,000 gallons or less;
- All containers holding animal feed ingredients approved for use in livestock feed by the Commissioner of Food and Drugs.
EPA must study discharge risks
The SPCC compliance requirements could change after the EPA completes the mandated study. The law requires EPA to consult with the Secretary of Agriculture to conduct a study within the next year to determine the amount that is appropriate for an SPCC rule exemption, based on whether there is significant risk of an oil discharge to water. Within 18 months of completing the study, the EPA may adjust the SPCC exemption level to not more than 6,000 gallons and not less than 2,500 gallons. This provision gives EPA an opportunity to lower the exemption beneath the current 6,000 gallon minimum if the agency can prove that there is significant risk of oil discharges on farms with fuel storage capacity between 2,500 and 6,000 aggregate gallons.
What is the SPCC rule compliance date for farms?
Surprisingly, the new law does not remove the uncertainty surrounding the deadline for a farm to comply with the SPCC rule. Maneuverings by Congress prevented EPA from enforcing the original May 13, 2013 compliance deadline until September 24, 2013. After that date, a letter from several members of Congress advised the EPA Administrator not to enforce the rule at all until Congress enacted new legislation that would exempt most farms from the rule. With the new law in place, will the EPA now enforce SPCC plan requirements against a farm? If so, then a farm that is subject to the rule could face penalties for non-compliance if it has an oil discharge and does not have its SPCC plan in place. Given that possibility, farms that fall under the new SPCC requirements should act quickly to develop their SPCC plans.
A few definitions from the SPCC rule, unchanged by the recent legislation, are helpful to understanding the rule’s application.
- Farm means a facility on a tract of land devoted to the production of crops or raising of animals, including fish, which produced and sold or normally would have produced and sold $1,000 or more of agricultural products during a year.
- Oil means oil of any kind or in any form, including, but not limited to: fats, oils, or greases of animal, fish, or marine mammal origin; vegetable oils, including oils from seeds, nuts, fruits, or kernels; and, other oils and greases, including petroleum, fuel oil, sludge, synthetic oils, mineral oils, oil refuse, or oil mixed with wastes other than dredged spoil.
- Reportable oil discharge history means either a single oil discharge over 1,000 gallons or two oil discharges that each exceeded 42 gallons and that occurred within any 12-month period in the 3 years prior to the farm’s required SPCC certification date.
For more on the SPCC rule, see the EPA's SPCC page.
Hunting laws don't often reach our highest court, but the Ohio Supreme Court has agreed to review one man's challenge to an unlawful hunting action by the Ohio Department of Natural Resources (ODNR). The case resulted in a fine of $27,851 against Huron County hunter Arlie Risner for the unlawful taking of an antlered white-tailed deer.
The case began in 2011, when ODNR charged Risner with “taking a white-tailed deer from the lands of another without first obtaining written permission from the landowner or an authorized agent in violation of R.C. 1533.17.” The Norwalk Municipal Court fined Risner $200 plus court costs and ordered forfeiture of the meat, which ODNR had seized from a processor. Risner also had to reimburse ODNR $90 for meat processing costs. The court later ordered Risner to turn over the deer's antler rack also, which he had taken to a taxidermist.
A few months following the court hearing, ODNR advised Risner that he also owed the state $27,851.33 as restitution for the value of the deer and that his hunting license was suspended until he paid the amount. ODNR based its claim on Ohio Revised Code section 1531.201, which states:
“(B) The chief of the division of wildlife or the chief's authorized representative may bring a civil action to recover possession of or the restitution value of any wild animal held, taken, bought, sold, or possessed in violation of this chapter or Chapter 1533 of the Revised Code or any division rule against any person who held, took, bought, sold, or possessed the wild animal.”
$27,851 for killing a deer?
ODNR's claim for $27,851 in restitution derived from ORC 1531.201, which contains a formula for calculating the minimum restitution value of an illegally taken antlered white-tailed deer. The formula determines the deer's value based on its the size. The law also includes additionall provisions for exceptionally large deer, stating that a convicted violator who takes a deer with a gross score of more than 125 inches "shall pay an additional restitution value that is calculated using the following formula: Additional restitution value = ((gross score - 100)2 x $1.65)."
The deer Risner killed exceeded the 125 gross score limit, with a 20-point rack and a gross score of 228 inches. ODNR thus used the additional formula to determine Risner's restitution, which escalated the demanded payment to over $27,000.
Challenges by both parties
Risner refused to pay ODNR’s restitution order and the agency began enforcement proceedings in court. Risner argued that the fee violated his constitutional rights and that ODNR could not seek restitution because the agency had already chosen its remedy of seizing the deer meat and antlers. The Huron County Court of Common Pleas avoided the constitutional issues but agreed with Risner that the plain language of ORC 1531.201 prevented further restitution because ODNR had already been awarded possession of the deer and antlers in prior court proceedings. Both Risner and the Huron County court focused on the “or” in the statute’s language, which states that ODNR “may bring a civil action to recover possession of or the restitution value of…” an animal. The "or" set up a choice either one remedy or the other, according Risner and to the common pleas court.
ODNR appealed the decision to Ohio’s Sixth District Court of Appeals. The appeals court disagreed with the lower court. The court unanimously concluded that ODNR did in fact have authority to recover the restitution value for the deer. “The statute, on its face, does not restrict ODNR from bringing a civil action to recover the restitution value if wildlife officers have already seized parts of the wild animal,” said the court. “Since Risner had no title to or ownership interest in the seized wild animal parts,” the court explained, “ it is illogical to construe ORC 1531.201 to require ODNR to choose between possession of the unlawfully taken parts or restitution for the unlawfully taken deer.”
Additionally, the appellate court noted that ORC 1531.201 contained “additional” provisions for restitution assessments for deer in excess of 125 points, explaining that "[w]e must presume that in enacting a statute, the General Assembly intended for the entire statute to be effective. * * * Thus, all words should have effect and no part should be disregarded." The court also stated, however, that nothing in its decision would prevent Risner from arguing for a deduction of the restitution value based on the monetary value the seized deer provided the state.
Risner requests review by Ohio Supreme Court
Risner asked the Ohio Supreme Court to review the decision. “To allow the chief to bring a second action when a remedy has already been provided, chosen and carried out is nonsensical, frivolous, a violation of law and due process, and a waste of the Court's time and resources,” argued Risner. “A second action provides for multiple sanctions and double (if not more) remedies…”
ODNR argued that the Supreme Court should not accept the case for review because the appeals court made a correct interpretation of the statute and because Risner had not been doubly penalized, as he had claimed. “It is clear the General Assembly recognized the need to create R.C. 1531.201(B) as a separate civil mechanism to recoup the full economic loss of this valuable resource,” stated ODNR. “The return of evidence did not make the State whole, nor should it be construed as a satisfaction of restitution liability…”
The question before the Supreme Court
Challenges to hunting laws don’t often pique the interest of the Ohio Supreme Court, especially those that don’t revolve around constitutional issues. But this case does carry serious implications for both ODNR and Ohio hunters. Does ORC 1531.201 allow ODNR to recover the parts of an antlered white-tailed deer and also to seek payment from the violator for the value of the deer, with additional payment for large animals? If this is the correct interpretation, we can conclude that our legislature intended strong sanctions against violators in addition to ensuring that a violator would not be able to keep a poached animal. Is this outcome more severe a punishment for unlawful takings of deer than the legislature intended?
Or does the statute require ODNR to choose either possession or a restitution payment, but not both? If this is the case, then ODNR must strategically determine how to handle an illegal taking of an antlered white-tailed deer. Should ODNR claim the meat and antlers so that a violator does not benefit from breaking the law? Or should ODNR allow the violator to keep the animal so that it can seek payment from the violator? If the deer is quite large and the restitution payment high, should ODNR choose the higher payment and higher economic value over reclaiming the animal from the violator? Is the goal of the statute punishment or regaining the economic value of an animal?
The Ohio Supreme Court will answer these and other questions when it determines the correct interpretation of ORC 1531.302 later this year or next.
Read the Court of Appeals decision in Risner v. Ohio Dept. of Natural Resources, Div. of Wildlife.
For most people, dogs are a very familiar part of the family. For farm families, dogs may even go beyond the family pet duties and help protect the assets of the farm – the livestock. However, when dogs get loose and go after the livestock of someone else, serious problems can arise. Any livestock that is killed or injured by someone else’s dog is a monetary loss, as well as an emotional loss for some. A question we frequently receive is what can someone do if their livestock is threatened or attacked by someone else's dog. In these cases, livestock owners do have a course of action they may follow.
Under what circumstances can you kill a dog threatening your livestock?
Under Ohio Revised Code Section 955.28, dogs committing certain acts against livestock, poultry, other domestic animals, and other animals that are the property of another person, may be killed at the time of the act. These acts include:
If a dog belonging to someone else is in the act of chasing, threatening, harassing, injuring, or killing your livestock, poultry or other animals, then you may kill the dog while it is in the act. If you are attempting to kill the dog while it is engaged in such an act, but you only wound the dog, you will not be liable for animal cruelty.
What if the dog has just committed the act and is running away?
If the dog is no longer in the act of chasing, threatening, harassing, injuring, or killing your livestock, then you are not permitted to kill the dog. If you do, you may face animal cruelty charges. In State v. Cordle, the owner of domestic fowl was found guilty under Ohio Revised Code Section 959.02 of maliciously, or willfully, and without consent of the owner, killing a dog that was the property of another. In that case, the domestic fowl owner found his neighbor’s dog killing one of his fowl. The dog ran back to the neighbor’s property where the domestic fowl owner had followed it and proceeded to kill it while on the neighbor’s property. If you do not catch the dog in the act of chasing, threatening, harassing, injuring, or killing your livestock, even though you may not kill the dog, you still may be able to recover damages for your loss, as explained in the next section.
When can you recover damages for you injured or killed livestock?
If you believe your injured or killed livestock had a fair market value of $10 or more, under Ohio Revised Code Section 955.29 you may be eligible to receive compensation from the dog and kennel fund. In each Ohio county, a dog and kennel fund has been created from the registration fees of dogs and dog kennels each year. Part of the funds are used for reimbursing livestock owners when a dog belonging to someone else has killed or injured their livestock. If the owner of the injured or killed livestock believes the animal has a fair market value of $10 or more, then the owner must follow the process laid out below in order to be compensated through the dog and kennel fund.
Ohio Revised Code Section 955.29 explains the process for recovering compensation from the dog and kennel fund:
- Notify a member of the board of county commissioners or dog warden within 3 days after the loss or injury has been discovered
- If a commissioner has been notified, then the commissioner will notify the dog warden
- The dog warden will investigate or have the loss or injury promptly investigated
- The dog warden or the person investigating will provide the owner with a claim form where the owner will provide the kind, grade, quality, and fair market value of the animal, as estimated by the owner, the nature and amount of the loss or injury, the place where the loss or injury occurred, and any other facts that will be useful to the warden in fixing responsibility for the loss or injury.
- If the warden finds all statements made by the owner on the claims form to be correct and agrees with the owner as to the fair market value of the animal, then the warden passes the information to the board of county commissioners who will then examine the information and make the final determination of the fair market value of the animal.
- If the warden does not find all statements to be correct or does not agree with the owner as to the fair market value, then the owner may appeal to the board of county commissioners.
It’s important to note that in order to recover from the dog and kennel fund, the owner of the injured or killed livestock must sign a statement indicating they did not own or harbor an unregistered dog on the date the loss or injury occurred.
The Ohio House of Representatives gave final approval on May 21, 2014 to a bill initiated in the Senate that addresses invasive plants. As approved by both chambers, Senate Bill 192 grants regulatory authority over invasive plants to the Ohio Department of Agriculture (ODA). While ODA, Ohio EPA and Ohio's Division of Forestry already have programs in place to educate and assist in the identification and removal of invasive species, the new law clarifies that the director of ODA has "sole and exclusive authority to regulate invasive plant species in this state." This authority includes the identification of invasive plant species and the establishment of prohibited activities regarding invasive plants.
The bill defines "invasive plant species" as:
"plant species that are not native to this state whose introduction causes or is likely to cause economic or environmental harm or harm to human health as determined by scientific studies."
A committee amendment to the bill clarifies that the definition of invasive plant species does not include "cultivated plants grown as food or livestock feed in accordance with generally accepted agricultural practices, including all plants authorized by the animal and plant health inspection service in the USDA." In committee hearings, the Ohio Invasive Plants Council expressed serious concerns about this exclusion for cultivated crops. The group's concern is that ODA would not have authority to evaluate plants with invasive properties if they are grown for livestock feed. Other groups have raised similar worries about plants with invasive characteristics grown for biofuel production. The Ohio Farm Bureau submitted testimony supporting the exemption, stating that the federal government already regulates plants grown for agricultural crops.
The bill contains one exception to ODA's authority over invasive plant regulation. The director of Ohio EPA may continue to consider invasive plant species when evaluating applications and permits for wetlands under Ohio's Water Pollution Control Act. Once ODA develops invasive plant regulations, however, the EPA must refer to ODA's list of invasive plant species when reviewing wetland applications and permits.
Read S.B. 192 here.
A new bill in the Ohio Senate addresses several legal issues for Ohio agritourism operators. Senators Jones (R-Springboro) and Peterson (R-Sabina) introduced S.B. 334 on May 7. The bill would impact Ohio agritourism operators in regards to civil liability, property taxation, zoning regulation and amusement ride standards.
Civil Liability Protection
Following a similar trend in other states, the Ohio legislation would grant agritourism operators civil liability protection from claims for injuries that occur during agritourism activities. An operator would not be liable for harm that an observer or participant sustains during an agritourism activity if the harm is a result of the following conditions, which the law defines as "risks inherent in an agritourism activity":
(a) The surface and subsurface conditions of land;
(b) The behavior of wild or domestic animals;
(c) The ordinary dangers associated with structures or equipment ordinarily used in farming or ranching operations;
(d) The possibility of contracting illness resulting from physical contact with animals, animal feed, animal waste, or surfaces contaminated by animal waste;
(e) 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.
The law does not extend civil liability immunity if an agritourism operator purposefully causes harm or if the provider's willful or wanton disregard for the safety of an observer or participant proximately causes harm to the person.
Tags: agritourism liability; agritourism; agritourism zoning; agritourism taxation; agritourism rides
Ohio State University Extension’s Agricultural & Resource Law Program will host the Sixth Annual Ohio Agricultural Law Conference on Friday May 16, 2014 at the Ohio 4-H Center. This year’s program features OSU’s Dr. Carl Zulauf discussing the new Farm Bill. Also on the schedule is a legislative update from Ohio Farm Bureau Federation’s Tony Seegers. Craig Vandervoort of Sitterly & Vandervoort Ltd. will present on Medicaid and nursing home planning for family farms. Robert Moore of Wright & Moore Law Co. will moderate a session featuring an OSU Extension Educator and an insurance agent on agri-tourism and direct marketing trends and liability. A roundtable discussion on guiding clients in today’s agricultural climate, moderated by Troy Callicoat of Barrett, Easterday, Cunningham and Eselgroth LLP, will wrap up the day.
A special highlight of this year’s conference is a bus tour of OSU’s Waterman Farm. The bus will then take conference attendees to the North Market in downtown Columbus for lunch and a discussion with North Market Farmers on legal issues and challenges they face. Law students interested in attending the conference may apply for student scholarships provided by the Paul L. Wright Agricultural Law Endowment Fund. Contact Caty Daniels at email@example.com for scholarship information. For more information and to register for the conference, visit www.regonline.com/OhioAgLaw.
The Ohio Legislature is one step closer to creating a unique fertilizer applicator certification program for Ohio agriculture. The Ohio House of Representatives recently approved the measure in S.B. 150, which had already passed the Senate in January (see our related post.) The legislation aims to reduce fertilizer runoff into Ohio's waters in response to recent problems with algae blooms in Lake Erie and Grand Lake St. Mary's. Other states with fertilizer applicator certification programs focus on professional, turf or urban applications of fertilizer, but Ohio's program would require farmers applying fertilizers on their own land to complete the knowledge-based certification program.
An amendment by the House extends the certification requirement to anyone applying fertilizer for agricultural production on more than 50 acres of land, rather than on more than 50 "contiguous" acres as approved by the Senate. The amendment will likely expand the program to more smaller-acreage farmers. Although urged to do so, neither the House of Representatives nor the Senate agreed to extend the proposal even further by including "manure" in the definition of "fertilizer."
The Senate must now approve the House-amended version when it reconvenes in early May. Upon Senate approval, the legislation would move to the Governor by mid-May. If enacted, the bill gives the Ohio Department of Agriculture three years to establish and implement the fertilizer applicator certification program. The bill also contains provisions for voluntary nutrient mangement plans, operation and management plans for animal feeding operations, and a few changes to Ohio's fertilizer license laws.
Watch for our final analysis of S.B. 150 as it continues the legislative process next month.
The Ohio Department of Agriculture (ODA) has announced that pesticide applicators, commercial sensitive crop producers and apiaries may now use the online Ohio Sensitive Crop Registry (OSCR). ODA developed OSCR as a “voluntary informational tool designed to allow stakeholders an effective way to communicate and protect pesticide-sensitive crops and apiaries.” The registry will enable applicators to determine whether there are any sensitive crops in an area before applying pesticides.
How does the registry work?
ODA designed the tool for registered apiaries and "commercial" sensitive crop producers who produce at least one-half acre of a single type of sensitve crop. The ODA defines sensitive crops as follows:
Apiaries – any ODA-registered apiary
Aquaculture – a location with any fish and other aquatics grown outdoors
Brambles – aggregated total of fruit such as raspberries and blackberries of at least .5 acres
Certified Organic – an organic farm certified by a USDA-accredited agent; certified organic crops, forage, and livestock of at least .5 acres
Nurseries – nursery stock and flowers of at least .5 acres
Greenhouse/High Tunnels – must be for commercial use and produce at least .5 acre of any combination of crops annually
Orchards – fruit or nut-producing trees of at least .5 acres
Grapes – vineyards of at least .5 acres
Tomatoes – all tomato cultivars of at least .5 acres
Fruit (other) - non-tree simple, aggregate and multiple fruits of at least .5 acres, excluding tomatoes, grapes, and brambles
Herbs – herbs and plants for spices of at least .5 acres
Vegetables – root and leafy vegetables, legumes, and pumpkins of at least .5 acres
Registration on OSCR is completely voluntary; a sensitive crop producer may create an account on the OSCR website and map the locations of their crops. ODA will then verify the producer's information before it is available on the registry. Private and commercial pesticide applicators may also voluntarily register on the site. If approved by ODA, an applicator may search the registry to identify the locations of sensitive crops and apiaries. The registry includes a mapping tool with options to search by address, parcel number, township, county, city, village and other methods.
It is important to note that the information provided in the registry is not available to the general public. It is only available to those who have registered on OSCR and have been verified by ODA.
Implications for crop producers and pesticide applicators
The registry offers a good risk management tool to sensitive crop producers. By allowing producers to communicate the existence of sensitive crops, which are typically not as easily observed as other crops, the registry should reduce pesticide drift impacts. One possible implication for sensitive crop producers is the risk of sharing crop information through the registry, but the ODA verification process should minimize potential misuse of registry information.
Reduced drift impacts will also benefit pesticide applicators who use OSCR. However, the voluntary nature of the registry raises potential implications for pesticide applicators. What is the liability exposure for an applicator who knows the registry is available but chooses not to use the tool? Could a harmed party argue that an applicator "should have known" about a sensitive crop because it was registered? Does the availability of the information create a new legal duty for pesticide applicators--a duty to take the additional step to identify nearby sensitive crops? Could an insurer refuse to cover an applicator who failed to consult the registry? Until Ohio courts receive and answer these legal questions, we don't have clear answers.
The caution to pesticide applicators, then, is to take the OSCR seriously. Don't overlook the registry because participation is "voluntary" rather than mandatory. The registry can provide important information that could reduce pesticide exposure to sensitive crops; a pesticide applicator who fails to utilize the information might be increasing his or her potential liability if pesticide drift occurs.
To learn more about the Ohio Sensitive Crop Registry, visit: http://www.agri.ohio.gov/scr/.