Recent Blog Posts

By: Peggy Kirk Hall, Wednesday, January 11th, 2017

Written by:  Ellen Essman and Chris Hogan, Law Fellows, OSU Agricultural & Resource Law Program

Part Two

Below is the second of our two-part series regarding bills related to agriculture that failed to pass during Ohio’s 2015-2016 legislative session.

Animal Welfare

Requirements for Humane Society Agents and House Bill 45

House Bill 45 was introduced February 10, 2015 and would have amended existing law to impose additional requirements upon those people hoping to be appointed as humane society agents.  A number of changes and additions would have been implemented through the passage of HB 45.  The bulk of the proposed legislation concerned training for humane society agents and filing evidence of completing that training with the county recorder.  HB 45 would have required county recorders to record “[p]roof of successful completion of training by humane society agents,” as well as “notices of revocation of agents’ appointment” in the official records (emphasis added).  According to the bill, proof of completion of training would have had to been signed by the CEO of the organization that provided training, the chief officer of the county humane society, and either the mayor or probate judge in the county.

House Bill 45 was referred to the Local Government Committee on February 11, 2015.  No further action was taken, rendering the proposed legislation dead when the 131st General Assembly ended.  

To read HB 45, visit this page. The Ohio Legislative Service Commission’s analysis of HB 45 is available here.

Tethering Animals and House Bill 94

House Bill 94 was introduced March 2, 2015 and would have enacted language that would have made it illegal to negligently tether an animal outside in certain situations. The bill would have imposed time limits on tethering and a prohibition on tethering animals in certain weather conditions.  Furthermore, a prohibition on tethering would have been imposed if the tethers were unsafe, under a certain length, allowed the animal to touch fences or cross property lines, or were inappropriate for the animal’s size.  HB 94 also would have prohibited tethering if the surrounding area was unsanitary, or if the owner of the premises was not present.  Finally, the bill would have amended the current law to include punishment for violating the proposed tethering language.  The bill, however, was referred to the House Agriculture and Rural Development Committee and afterwards, no action was taken on it. 

To read HB 94, visit this page. The Ohio Legislative Service Commission’s analysis of HB 94 is available here.

Animal Abusers and House Bill 177

 House Bill 177 was introduced on April 28, 2015.  HB 177 would have required people who either were “convicted of or pleaded guilty to” a number of animal abuse violations to submit certain information, along with a fee, to the Attorney General within 30 days of “being convicted or pleading guilty.” HB 177 also tasked the Attorney General with creating and keeping a registry of animal abuse violators.

Law enforcement officers, humane society agents, and dog wardens would have been responsible for notifying the Attorney General of animal abuse violations. Animal shelters would have been prohibited from allowing a person on the registry from adopting a dog, cat, or any animal kept in a home. 

The bill was referred to the Agriculture and Rural Development Committee on May 5, 2015, where no further action was taken.

To read HB 177, visit this page.

Sale of Dogs and House Bill 573

House Bill 573 was introduced on May 17, 2016.  This bill focused on the sale of dogs both from pet stores and from other entities.   The bill would have added or changed a number of definitions in the Ohio Revised Code.  Most notably, the law would have made it illegal for a pet store to “negligently…offer for sale” or otherwise “transfer” a dog unless it came from an animal rescue, an animal shelter, a humane society, a dog retailer, or a qualified breeder, all of which were defined elsewhere in the bill. 

Additionally, according to HB 573, both dog retailers and pet stores would have been forbidden from selling or otherwise transferring a dog under a number of conditions.  Under the bill, they could not have sold dogs less than eight weeks old, dogs that had not been inspected by a veterinarian, and dogs without a microchip, among other conditions. However, none of these requirements would have been applicable to a dog sold or otherwise “transferred from the premises where the dog was bred and reared.” Finally, the bill included language stating that it would preempt local laws regulating the sale of dogs.  House Bill 573 was referred to the Finance Committee on May 23, 2016 and no further action was taken. 

To read HB 573, visit this page. The Ohio Legislative Service Commission’s analysis of HB 573 is available here.

Natural Resources

Invasive Species and House Bill 396

House Bill 396 was introduced on November 16, 2015.  This bill dealt with restricting and prohibiting certain species in Ohio.  HB 396 would have added a number of definitions to the Ohio Revised Code, including a lengthy list of “prohibited species.”  Species of birds, crayfish, fish, insects, and mollusks were included in the list.  Additionally, “restricted species” was defined as including the quagga mussel, the zebra mussel, and their eggs.  In addition, HB 396 would have given the Chief of the Division of Wildlife, with advice from Ohio Director of Agriculture, the power to designate other restricted and prohibited species subject to a number of considerations.  One of these considerations would have been whether or not the species could cause severe harm to agricultural resources. The bill would have made it illegal to possess, introduce, sell, or offer to sell restricted and prohibited species.

The bill was referred to the Agricultural and Rural Development Committee on January 20, 2016 and ultimately did not leave the Committee.

To read HB 396, visit this page. The Ohio Legislative Service Commission’s analysis of HB 396 is available here.

Deer Rehabilitation and House Bill 267

House Bill 267 was introduced on June 22, 2015 and would have changed the Ohio Revised Code to allow licenses to run deer sanctuaries, permits to rehabilitate deer, and training for law enforcement.  During the training, law enforcement officers were supposed to learn how to determine whether they needed to humanely euthanize injured deer or transfer them to someone permitted to rehabilitate the deer.

The bill was referred to the House Committee on Energy and Natural Resources on October 1, 2015, and was ultimately stranded there. 

To read HB 267, visit this page. The Ohio Legislative Service Commission’s analysis of HB 267 is available here.

Labeling Nursery Stock and House Bill 566

 House Bill 566 was introduced on May 12, 2016 and would have made it illegal for a person to “recklessly label or advertise nursery stock as beneficial to pollinators” if the nursery stock had been “treated with a systemic insecticide.”  It would also have been illegal for a person to “recklessly label” stock as beneficial if the stock included the U.S. EPA warnings of “pollinator protection box[es]” and “pollinator, bee, or honey bee precautionary statement[s] in the environmental hazard section of an insecticide product label” on its packaging. 

The bill was referred to the Agriculture and Rural Development Committee on November 11, 2016 and never made it any further.

To read HB 566, visit this page. The Ohio Legislative Service Commission’s analysis of HB 566 is available here.

Taxation

Adjusting Current Agricultural Use Value formulas: Senate Bill 246 and House Bill 398

During the 131st General Assembly, the Senate considered Senate Bill 246. SB 246 addressed how current agricultural use value, otherwise known as CAUV, is calculated. CAUV permits land to be valued at its agricultural value rather than the land’s market or “highest and best use” value. SB 246 was a companion bill. That means that a version of the bill was introduced in both the Ohio House and the Ohio Senate. The companion house bill to SB 246 was House Bill 398.

Both bills were intended to alter the current formula used to calculate CAUV values across Ohio. According to the Ohio Legislative Service Commission, the changes proposed by the bill would “have a uniformly downward effect on the taxable value of CAUV farmland.” Thus, the likely effect would have been a lower tax bill for farmers who are taxed on a CAUV basis.

The Senate referred its bill, SB 246, to the Senate Ways and Means Committee on December 9, 2015 and HB 398 was referred to the House Government Accountability and Oversight Committee on January 20, 2016. Neither committee acted on its bill. Therefore, neither bill was passed into law during the 131st General Assembly.

To read SB 246, visit this page. The Ohio Legislative Service Commission’s analysis of SB 246 is available here. To read HB 398, visit this page. The Ohio Legislative Service Commission’s analysis of HB 398 is available here.

Nonrefundable Tax Credits for Rural Businesses and Senate Bill 209

The 131st General Assembly considered a nonrefundable tax credit for insurance companies that invest in certain rural business growth funds. According to the Ohio Legislative Service Commission, qualifying rural business growth funds include special purpose rural businesses that contribute capital to certain kinds of businesses with substantial operations in rural areas of Ohio.

SB 209 passed in the Ohio Senate. But, the bill did not pass the Ohio House. Therefore, the bill was not passed into law during the 131st General Assembly.

To read SB 209, visit this page. The Ohio Legislative Service Commission’s analysis of SB 209 is available here.

Posted In: Animals, Business and Financial, Environmental, Tax
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By: Peggy Kirk Hall, Tuesday, January 10th, 2017

Written by:  Ellen Essman and Chris Hogan, Law Fellows, OSU Agricultural & Resource Law Program

Part One

Ohio’s 131st General Assembly came to a close in December of 2016. In Ohio, a legislative session (also known as a General Assembly) lasts for two years. A bill fails to become law if that bill was introduced during a legislative session but did not pass by the end of the session. Below is a summary of bills related to agriculture that failed to pass during Ohio’s 2015-2016 legislative session. Time will tell whether our legislators will revive and reintroduce any of these proposals in the new 2017-2018 legislative session.  

Nutrient Management

Application of Fertilizer and Manure and Senate Bill 16

Nutrient management remained a topic of discussion in Ohio throughout 2015 and 2016. Most notably, in July of 2015, SB 1 passed and became law. SB 1 placed restrictions on the application of nutrients in the Lake Erie Basin. For example, SB 1 placed restrictions on the application of manure under certain weather conditions.

The 131st assembly considered a similar bill, Senate Bill 16, in February of 2015. SB 16 sought to regulate many of the issues that SB 1 now regulates.  SB 16 failed to pass and did not become law. Notwithstanding SB 16’s failure to pass, nutrient management was a popular topic for the 131st General Assembly.

To read SB 16, visit this page. The Ohio Legislative Service Commission’s analysis of SB 16 is available here.

House Bill 101 and the Response to Algal Blooms

House Bill 101 was introduced on March 4, 2015.  The bill would have enacted a number of sections into the Ohio Revised Code that would have addressed algal blooms in Ohio waterways. First of all, under the language of HB 101, owners or operators of public water systems in areas at risk for harmful algal blooms, together with the directors of the Ohio EPA and ODNR, would have had the ability to develop emergency plans to combat the algal blooms.  Secondly, the Directors of the Ohio EPA and the Department of Natural Resources were tasked with developing and circulating an early warning system for harmful algal blooms. Thirdly, the Ohio EPA would have had the responsibility to provide training to publicly owned treatment works and public water systems relating to monitoring and testing for “harmful algae and cyanotoxins in the water.”  Finally, under HB 101, the Director of the Ohio Department of Natural resources would have had to study and report on the economic and environmental impacts of Canada geese and zebra mussels on Lake Erie. 

The bill was referred to the House Committee on Agriculture and Rural Development on March 4, 2015 and was never acted upon.

To read HB 101, visit this page. The Ohio Legislative Service Commission’s analysis of HB 101 is available here.

Agricultural Operation and Management Plans and Senate Bill 224

Currently, operation and management plans are a voluntary measure for Ohio farmers. In Ohio, an owner or operator of agricultural land or an animal feeding operation may implement a plan which incorporates pollution abatement practices and best management practices for the operation. But, the 131st General Assembly considered a bill which would make such plans mandatory for operators who operate farms of 50 acres or more.

The proposed bill, otherwise known as Senate Bill 224, would have required operation and management plans to include certain standards for applying fertilizer or manure. The bill also gave the Ohio Director of Agriculture authority to enforce corrective actions against farm operations and to assess civil penalties for non-compliance. However, SB 224 did not pass in the Senate and was not signed into law.

To read SB 224, visit this page. The Ohio Legislative Service Commission’s analysis of SB 224 is available here.

Business

Series LLCs and House Bill 581

Ohio permits the formation of Limited Liability Companies, otherwise known as LLCs. LLCs offer many attractive benefits for a farming operation. Namely, LLCs provide liability protection to the members or owners of that LLC.

Some LLC farming operations have become more complex in recent years. As a result, some farming operations choose to have multiple LLCs across an entire farming operation. For example, a farm operation may have one LLC which owns only farm property and a second and entirely separate LLC that owns only farm machinery. But, multiple LLCs create additional complexity which may complicate a farming operation.

One proposed solution is the series LLC. The 131st General Assembly proposed the introduction of series LLCs in House Bill 581. A series LLC would allow a single LLC to create multiple series within the LLC without the need to create an entirely new LLC for each series. Under HB 581, a LLC organized as a series LLC would be able to limit the power of managers or members in different series within the series LLC. A series LLC would also be able to place different assets and obligations into different series within the LLC.

Under HB 581, the debts and obligations of a particular series within an LLC would have been limited to that series only. But, HB 581 did not pass during the 131st General Assembly. Therefore, series LLCs remain non-existent in Ohio.

To read HB 581, visit this page. The Ohio Legislative Service Commission’s analysis of HB 581 is available here.

Food

Donation of Food and House Bill 111

House Bill 111 was introduced on March 10, 2015.  This bill would have allowed food service operations to apply for a rebate from the Director of Health if they donated the food to a nonprofit organization.  The rebate would have been ten cents per pound of perishable food donated. HB 111 was referred to the House Ways and Means Committee on March 16, 2015 and no further action was taken.

To read HB 111, visit this page. The Ohio Legislative Service Commission’s analysis of HB 111 is available here.

By: Peggy Kirk Hall, Friday, January 06th, 2017

Many Ohioans choose to avoid the probate process by using a transfer on death designation. Since 2000, Ohio has permitted property owners to use transfer on death designations to transfer property upon the owner’s death. Since 2009, Ohio law has required property owners to make transfer on death designations by using an affidavit instead of a survivorship deed. Under a new Ohio law, transfer on death affidavits may automatically terminate after certain life events.

The new changes took effect on December 13, 2016 when the Governor signed Senate Bill 232 into law. Under Senate Bill 232, a transfer on death designation made either by a deed or by an affidavit to an owner’s spouse terminates if the property owner obtains a divorce, dissolution, or annulment.  The new law applies to new and pre-existing transfer on death designations.

Because the law applies to pre-existing transfer on death designations, it may be a good time for property owners to revisit their estate plans. Property owners should be aware of the effect of divorce, dissolution, or annulment on their transfer on death designations.

The Ohio Legislative Service Commission’s analysis of Senate Bill 232 is available here. More information on transfer on death designations is available from the Ohio State Bar Association here

Posted In: Estate Planning, Property
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By: Peggy Kirk Hall, Wednesday, July 20th, 2016

Part 2:  Rules for Operating Drones

The FAA’s long awaited rule for drones or “small unmanned aircraft systems” (sUAS) weighing less than 55 pounds will be effective on August 29, 2016.  Our previous post explained the rule’s process for obtaining certification as a Remote Pilot in Command (Remote PIC) that will apply to those who operate a sUAS for commercial uses or incidental to a business, such as for farming purposes.  In this post, we focus on the new rule's operational requirements and limitations.   Farmers who want to use a drone in the farm operation need to understand and comply with these provisions.

Pre-flight requirements

  • Registration.  A person may not operate a sUAS over 0.55 pounds unless it is registered with FAA.  An online registration is available at https://registermyuas.faa.gov/
  • Pre-flight inspection.  The Remote PIC must inspect the sUAS prior to a flight to ensure that it is in a condition for safe operation, which includes inspecting for equipment damage or malfunctions.  The FAA advises operators to conduct the pre-flight inspection in accordance with the sUAS manufacturer’s inspection procedures and provides a list of the elements to address in a pre-flight inspection in section 7.3.4 of this guideline.
  • Pre-flight information.  The Remote PIC must make sure that all persons directly involved in the flight are informed about roles and responsibilities, operating conditions, emergency and contingency procedures and potential hazards.
  • Flight operators.  Only a Remote PIC may fly the sUAS, or someone under the direct supervision of a Remote PIC if the PIC is easily able to gain control of the sUAS.  A Remote PIC may only operate or observe one drone at a time.
  • Airspace.  Flights of sUAS are allowed in Class G airspace, the airspace that is not controlled by Air Traffic Control (ATC) communications, which encompasses a majority of agricultural lands.  A flight in Class, B, C, D and E controlled airspace requires permission from the appropriate ATC prior to flight.  The FAA will establish a web portal that will allow an operator to apply for ATC permission online.
  • Waiver process.  The operator may apply for a “certificate of waiver” that allows deviation from some of the operational requirements if the FAA determines that the flight would be safe.  The operator must receive the waiver prior to the flight, so should file the request about 90 days in advance of the proposed flight.   The FAA will post the waiver applications, which are not yet available, at http://www.faa.gov/uas/.

Operating rules during flight

  • Weather visibility.  There must be a minimum visibility of three miles from the sUAS control station.
  • Visual line of sight.  The Remote PIC or the authorized person operating the drone must maintain a constant visual line of sight with the sUAS, without the aid of a device other than glasses or contact lenses.   The operator may use a visual observer to help maintain the line of sight, but using an observer cannot extend the line of sight.
  • See and avoid.  The operator must yield the right of way and avoid collision with another use of the national air space.
  • Height.  The sUAS may not fly more than 400 feet above ground level.
  • Time of day.  Flights may occur only during daylight hours or no more than 30 minutes before official sunrise or after official sunset if the sUAS has anti-collision lighting.
  • Speed.  The sUAS speed may not exceed 100 miles per hour.
  • People.  A flight may not occur over persons who are not involved in the flight or are not under a covered structure or inside a covered stationary vehicle.
  • Base of operation.  Operation of the sUAs may not occur from a moving aircraft.  Operation from a moving land or water vehicle is permissible if in a sparsely populated area and not transporting property for hire.
  • External load and towing.  A sUAS may carry or tow an external load if the load is securely attached, does not affect control of the aircraft, is not a hazardous substance and the combined weight of the sUAS and its load does not exceed the 55 pound weight limit.
  • Aerial applications.  Use of a sUAS for dispensing herbicides, pesticides and similar substances must also comply with the “agricultural aircraft operation” regulations in 14 CFR 137.3.
  • Dropping objects.   An operator may not create an undue hazard that poses a risk of injury to persons or property when dropping an object from a sUAS.
  • Careless or reckless operation.  A person must not operate a sUAS carelessly or recklessly.  The FAA provides the example of failing to consider weather conditions when flying near structures, trees or rolling terrain in a densely populated area as an example of careless or reckless operation.

After-flight requirements

  • Production of records and vehicle.  If requested by FAA, a person must make the sUAS or its records available for testing or inspection.
  • Accident reporting.   Within 10 days of occurrence, a Remote PIC must report to the FAA a flight operation that results in loss of consciousness or serious injury to a person or creates property damage of at least $500.  Reporting can occur online at www.faa.gov/uas or by telephone to the appropriate FAA field office or regional center.

Penalties for noncompliance with the rule

The FAA will have enforcement authority over the new regulations.  Depending upon the type and violation, civil penalties could be up to $27,500.  An operator could also be subject to criminal penalties for violations that are reckless, destroy property or threaten public safety; those penalties could be up to $250,000.

Learn more about the sUAS rule at http://www.faa.gov/uas/

Posted In: Business and Financial, Crop Issues, Drones
Tags: drones, sUAS, FAA, part 107
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By: Peggy Kirk Hall, Friday, July 15th, 2016

After several years of debate over voluntary versus mandatory GMO (genetically modified organism) labeling, Congress passed legislation yesterday to create a unified national standard requiring disclosure of information for bioengineered foods.  Predictions are that President Obama will sign the legislation soon.  Once effective, the new law will preempt state laws that require labeling of foods containing GMOs, such as the Vermont labeling law that recently became effective on July 1.  The bill's passage through Congress represented a bi-partisan compromise led by senators Pat Roberts (R-KS) and Debbie Stabenow (D-MI).  "This is the most important food and agriculture policy debate of the last 20 years," said Sen. Roberts.

What’s in the bill?

The legislation amends the Agricultural Marketing Act of 1946 to include the following:

  • Definition of “bioengineered” food, which is food intended for human consumption that contains genetic material that has been modified through in vitro recombinant DNA techniques and for which the modification could not otherwise be obtained through conventional breeding or found in nature.
    • The Secretary of Agriculture shall determine the amount of bioengineered substance necessary to deem the food as bioengineered.
    • A food that is derived from an animal that consumed feed containing bioengineered substances shall not be considered bioengineered.  Thus, meat, poultry, dairy and eggs from animals that have consumed GMO feed will not be subject to the labeling requirements because they cannot be defined as bioengineered.
  • Preemption of state food labeling standards.  No state or political subdivision may establish requirements for labeling whether a food or seed is bioengineered or contains ingredients that are bioengineered.  A food may bear disclosure of bioengineering only in accordance with federal regulations arising from this law.
  • Creation of federal mandatory disclosure standard.  Within two years of the bill’s enactment, the Secretary of Agriculture must establish a mandatory national bioengineered food disclosure standard and the procedures necessary to implement the national standard.  
  • Choice of labeling.  The federal standard must give a manufacturer the option of disclosing information with on-package text, a symbol or an electronic or digital link, such as a QR code.  An electronic or digital link must contain access to an internet website or other type of electronic source.
    • The USDA must conduct a study to identify potential technological challenges of disclosure through electronic or digital means, and must provide additional options if determined that the proposed technological options do not provide sufficient access to bioengineered food disclosure information.  
    • The USDA must also develop alternative disclosure options for foods contained in small packages.
  • Exclusions.  The following are excluded from the national disclosure standard:
    • Food served in a restaurant or similar retail food establishment.
    • “Very small” food manufacturers, to be defined through rulemaking.
    • As explained above, meat, poultry, dairy and eggs from animals that consume GMO feed.
    • A food containing meat, poultry or eggs if the predominant ingredient would not independently be subject to the standard of if the predominant ingredient is broth, stock, water or a similar solution and the second-most predominant ingredient would not independently be subject to the national standard.
  • “Small” food manufacturers.  The USDA must define “small food manufacturers” and provide such manufacturers with a grace period of at least one year for implementation of the new standards and the additional option of providing only a telephone number or internet website on a food label to disclose required information.
  • Food safety implications.  The FDA conducts a pre-market consultation process for foods from genetically engineered plants; foods that successfully complete the process shall not be treated as more or less safe than non-genetically engineered counterparts because of bioengineering.
  • Organically produced foods.  A food certified as “organic” under the national organic program may be labelled as “not bioengineered,” “non-GMO” or with similar language.
  • Enforcement.  Failing to disclose a food as bioengineered is a prohibited act, but the rulemaking process will determine whether there will be penalties for noncompliance.  The USDA Secretary will have authority to request records and conduct audits and hearings in regards to compliance but will not have recall authority for a food that does not comply with disclosure regulations.

What’s next?

The preemption established in the new law will be effective immediately and the State of Vermont is prohibited from enforcing its GMO labeling law.  The USDA, through its Agricultural Marketing Service, will begin the rulemaking process for the national disclosure standard.  A few key issues for agriculture to track though out the rulemaking stage will be the determination of "how much" bioengineered substance is sufficient to deem a food as bioengineered; defining the "very small" food manufacturers that will be exempt from the standard and the "small" manufacturers that will have a grace period and simpler disclosure requirements, whether QR codes and other technology options will remain viable due to expected objections that they discriminate against lower income consumers; and penalties for noncompliance. The two year window for rulemaking, however, leaves open the opportunity for future changes such as amending the legislation or prohibiting funding to be used for its implementation.  Thus, while we have entered a new stage of the GMO labeling debate, the uncertainty of GMO labeling is not yet fully resolved.

To read the legislation, visit this page.

By: Peggy Kirk Hall, Friday, July 08th, 2016

The Ohio General Assembly has enacted a law that raises the monetary limit for cases handled through Ohio's small claims court system.  The new maximum amount of $6,000 for a small claims case will replace the current limit of $3,000 when House Bill 387 becomes effective in late September.  Under the new law, a defendant in the case may also file a counterclaim for up to $6,000.  Governor Kasich signed the bill on June 28, 2016.

Ohio law requires every county and municipal court in Ohio to establish a small claims division to handle minor disputes involving only the recovery of money.  A small claims court cannot hear cases for slander, libel, malicious prosecution, abuse of process, return of personal property, punitive damages or other cases seeking remedies other than money.  A person may file a small claims complaint and present the case in court without the assistance of an attorney, but may have legal representation if desired.   The court may appoint a magistrate, who must be an attorney, to oversee the case and render a decision.   The court also has the authority to enforce a monetary judgment against a party.  Because small claims cases tend to be simple, they are resolved in less time and with less expense than cases heard by other courts.

The increased monetary limit for small claims cases will allow farmers and agribusinesses to address more disputes quickly and without the expense of an attorney.  Operators and landowners owed money for products or services in excess of the current $3,000 small claims maximum often express frustration that it could be too costly and time consuming to address the matter through municipal or county courts.  The new higher limit of $6,000 should capture many of these cases and offer an opportunity to recover such losses through the small claims process.  According to the bill's sponsor, Rep. Lou Terhar (R-Cincinnati), the change will "bring Ohio in line with surrounding states and make Ohio a better place to do business and generate jobs."

To learn more about using the Ohio small claims court process, visit this webpage.  House Bill 387 is available here, and Ohio's laws on small claims courts are  here.  

 

By: Peggy Kirk Hall, Thursday, July 07th, 2016

Governor Kasich has signed legislation to create a new “Ohio Farm Winery Liquor Permit.”  While wine makers in Ohio may currently obtain a general liquor permit to make and sell wine on a farm, the general permit does not distinguish the source of the wine. The new Ohio Farm Winery Permit legally designates the wine as being made from grapes grown on the wine maker’s farm.  Sponsors and supporters of the legislation claim that the special designation will help consumers know a wine’s localized nature, bring recognition to Ohio’s wine growing regions, keep Ohio competitive with other states that designate farm-produced wines, and ensure that farm wineries continue to receive property tax treatment as agricultural operations.  Wineries that qualify for the new permit would "be able to present themselves as true farming operations," according to sponsor Ron Young (R-Leroy Township).

Ohio’s Division of Liquor Control may issue an Ohio Farm Winery Permit only to wine makers who meet two requirements:  the manufacturer produces wine from grapes, fruit or other agricultural products grown on the manufacturer’s property, and the property qualifies as “land devoted exclusively to agricultural use” under Ohio’s Current Agricultural Use Valuation (CAUV) program, which requires that the land be used for commercial agricultural production and be at least 10 acres in size or, if less than 10 acres, generates a minimum average of $2500 in gross income.

Under the new law, an Ohio Farm Winery Permit holder may sell its wine products for consumption on the premises where manufactured, for consumption off the premises in sealed containers, or to a wholesale permit holder. An Ohio Farm Winery Permit holder may also manufacture, purchase and import brandy for fortifying wine and may import and purchase wine for blending purposes, but the total amount of wine used for blending cannot exceed 40% of all wine manufactured by the wine maker.   

H.B. 342, which will be effective in late September, is available here.  

By: Peggy Kirk Hall, Thursday, June 30th, 2016

Part 1:  Drone Pilots Must Obtain FAA Certification

The Federal Aviation Administration (FAA) yesterday filed its final rule in the Federal Register for the Operation and Certification of Small Unmanned Aircraft Systems (sUAS).  The new rule allows for the non-recreational operation of sUAS less than 55 pounds in the national airspace.  Farmers and professionals planning to use UAS or “drones” for agricultural purposes must comply with the rule beginning on August 29, 2016.  An important first step toward compliance is to obtain the proper license to operate a sUAS, referred to as “remote pilot certification” by the FAA.

The Remote Pilot Certification Requirement

The Remote Pilot in Command (Remote PIC) is the person who is directly responsible for the operation of the sUAS.  The new rule requires the Remote PIC to obtain a remote pilot certificate with a small UAS rating.  To do so, an applicant must meet eligibility requirements, pass a knowledge test and complete the application process. 

1.      Eligibility requirements.   An applicant for a Remote PIC must be at least 16 years old, proficient in the English language, and in a physical and mental condition that would not interfere with safe operation of a sUAS.

2.      Knowledge test.    An applicant must pass the unmanned aircraft general (UAG) knowledge test before applying for the remote pilot certificate.  The knowledge test, which will be available beginning August 29, 2016, will contain 60 multiple choice questions on:

  • Federal regulations for sUAS.
  • Airspace classification and operating requirements.
  • Weather sources and effects of weather on sUAS.
  • Loading and performance of sUAS.
  • Emergency procedures.
  • Crew resource management.
  • Radio communication procedures.
  • Determining performance of sUAS.
  • Effects of drugs and alcohol.
  • Aeronautical decision-making.
  • Airport operations and maintenance.
  • Preflight inspection procedures.

The FAA provides a free online learning course for knowledge test preparation, available through www.faasafety.gov or here.   The FAA also presents a sample exam on its website, available here.   Applicants must take the knowledge test at an FAA-approved Knowledge Testing Center.  A list of Ohio’s 23 test centers is available at www.faa.gov/training_testing/testing/media/test_centers.pdf .   Passing the test requires a score over 70%; an applicant who fails the test may retake the test after 14 days.

Applicants already holding a pilot certificate, other than a student pilot, must follow a different process that includes completing a two-hour online course.  The course, which includes an exam, is available through www.faasafety.gov or here

3.      Application.  An applicant who passes the UAG knowledge test must complete the application for a remote pilot certificate, FAA Form 8710-13.   The form will be available as a paper application or online through the FAA’s Integrated Airmen Certificate Rating Application System at https://iacra.faa.gov.   The Transportation Security Administration (TSA) will then conduct a background security screening of the applicant to determine if the applicant represents a security threat.  If the screening is successful, an applicant will receive the remote pilot certificate.  An unsuccessful security screening will disqualify the applicant, who would have a right to appeal the security screening decision.  Note that an applicant who uses the online application can obtain a temporary certificate online upon successful completion of the security screening, while an applicant who submits a paper application must wait to receive the permanent remote pilot certificate through U.S. mail.  The FAA has announced that it hopes to issue a temporary remote pilot certificate within 10 business days after submission of an online application.

What Happens After Certification?

A certified Remote PIC may legally fly a sUAS and may also directly supervise persons who do not hold a remote pilot certificate, as long as the Remote PIC maintains the ability to take control of the sUAS.  This provision will allow Remote PICs to teach, demonstrate and train uncertified operators.  The Remote PIC has several responsibilities:

  • Register the sUAS with the FAA.
  • Conduct pre-flight inspections.
  • Abide by operational limitations in the new sUAS rule.
  • Maintain records on the sUAS and its flights.
  • Upon request, make the sUAS and records available to the FAA for inspection or testing.
  • Report any operation that results in injury, loss of consciousness or property damage of at least $500 to the FAA within 10 days of occurrence.

Recurrent knowledge test.  A person who receives the remote pilot certificate must take a recurrent knowledge test within 24 months to retain the certification. 

Part 2 of this Series

In our next post in this series on implications of the new rule for sUAS in agriculture, we’ll explain the operational limitations and requirements for sUAS.  To read the new rule or access up-to-date information on sUAS, go to www.faa.gov/uas.  

By: Peggy Kirk Hall, Tuesday, May 31st, 2016

A landowner may immediately appeal an agency’s determination that property contains “waters of the United States” that is subject to the federal Clean Water Act, according to a decision issued today by the United States Supreme Court.

The court’s holding in Army Corps of Engineers v. Hawkes Co. centered on a decision by the U.S. Army Corps of Engineers (the Corps) that property in Minnesota owned by the Hawkes Company (Hawkes) contained wetlands that were subject to the Clean Water Act.  Hawkes planned to mine peat on the property, and would have to comply with Minnesota regulations.  The Corps decided that Hawkes must also comply with federal Clean Water Act regulations, based on its “jurisdictional determination” that the property contained waters of the United States because its wetlands had a “significant nexus” to the Red River of the North, located 120 miles away.   

Hawkes challenged the Corps’ jurisdictional determination in federal district court.  The Corps requested dismissal of the case, arguing that its jurisdictional determination was not a "final agency action" that Hawkes could appeal in court.  Rather, the Corps asserted that Hawkes should apply for a Clean Water Act permit and challenge the results of the permit request if dissatisfied or should proceed without a permit and challenge the jurisdictional determination in a likely enforcement action.

The federal district court agreed with the Corps and dismissed the case.  Hawkes then appealed to the Eighth Circuit Court of Appeals, which reversed the district court’s decision.  The Corps requested review of the appeal by the United States Supreme Court, which accepted the case.

The Supreme Court concluded that the Corps’ jurisdictional determination is appealable according to the federal Administrative Procedures Act, which allows an aggrieved party to appeal a “final” agency action.  An action is final if it determines legal consequences,“marks the consummation of the agency’s decision making process,” and when there are no adequate alternatives for relief other than judicial review.  All three circumstances existed in the Hawkes case, said the Court, stating that parties should not have to await enforcement proceedings that carry the risk of criminal and civil penalties before challenging a jurisdictional determination or be forced through a lengthy and costly permitting process before being able to challenge the Corps’ jurisdictional determination. 

Read the decision in Army Corps of Engineers v. Hawkes Co. here.

By: Peggy Kirk Hall, Monday, May 09th, 2016

An agritourism bill first introduced over a year ago has finally received approval from the Ohio General Assembly. The Senate passed SB 75 last November, but the bill did not pass the House of Representatives until May 4, 2016. The House had passed a similar bill last May, but the Senate failed to act on that bill. If signed by Governor Kasich, SB 75 will be in effect in time for the fall agritourism season. (Update: Governor Kasich signed the bill, which becomes effective 8/16/16).

The legislation addresses civil liability risk, property taxation and local zoning authority for “farms” that provide “agritourism” activities. It’s important to understand several definitions in the law:

  • A "farm" is land that is devoted to commercial agricultural production, either at least 10 acres in size or grossing an average income of $2500 from such production.
  • "Agricultural production" means 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.
  • "Agritourism" is 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.
  • An "agritourism provider" is anyone who owns, operates, provides, or sponsors an agritourism activity, whether or not for a fee, including employees at agritourism activities. 

For agritourism providers on farms, the legislation offers the following protections:

Civil liability immunity.   The new law protects an agritourism provider from liability for injuries to agritourism participants in certain situations. The law states that a provider does not have a legal duty to remove risks that are “inherent” in agritourism activities and will not be liable for any harm a participant suffers because of such risks. “Inherent risks” are dangers or conditions that are an integral part of an agritourism activity, including surface and subsurface conditions of land; ordinary dangers of structures or equipment ordinarily used in farming; behavior or actions of domestic or wild animals , except for vicious or dangerous dogs; the possibility of contracting illness from physical contact with animals, animal feed, animal waste, or surfaces contaminated by animal waste; and a participant’s failure to follow instructions or exercise reasonable caution while engaging in the agritourism activity.

Warning sign requirement. An agritourism provider must post and maintain warning signs on the farm to receive the law’s civil liability protection, and a provider who fails to post or maintain these signs can be liable for a participant’s harm. At or near each entrance to the agritourism location or at each agritourism activity, a provider must post and maintain a sign that states: "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." This warning must be printed in black letters that are at least one inch in height.

Exceptions to immunity.  An agritourism provider will not be immune for harm caused by the provider’s willful or wanton disregard for a participant’s safety; if the provider purposefully caused harm to the participant; if the provider's actions or inactions constituted criminal conduct and caused harm to the participant; or if the provider had or should have had actual knowledge of an existing dangerous condition that is not an inherent risk and the provider did not make the dangerous condition known to the participant.

Property taxation. The new legislation ensures that agritourism parcels are eligible for Ohio’s Current Agricultural Use Valuation (CAUV) program, which provides reduced property taxation on qualifying agricultural lands. According to the new law, the existence of agritourism on a tract, lot, or parcel of land does not disqualify land that otherwise qualifies for the CAUV program.

Local zoning authority. The new legislation expands Ohio’s “agricultural exemption” from local zoning to include agritourism activities. The “agricultural exemption” limits the ability of townships and counties to use zoning to prohibit or regulate certain agricultural land uses in any zoning district. Under the new law, agritourism becomes part of the agricultural exemption and is an agricultural land use that zoning officials cannot prohibit by way of zoning.

The legislation does allow townships and counties to regulate some factors related to agritourism land uses if the regulations are necessary to protect public health and safety, however. These factors include the size of structures used primarily for agritourism and setback lines for such structures, egress or ingress into a parcel, and the size of parking areas. This limited authority does not include the power to require improvements such as drainage or paving for agritourism parking areas.

The legislation also clarifies that county and township zoning may not prohibit the use or construction of structures for vinting and selling wine if located on land where grapes are grown.

Implications of the new legislation

  1. Not everyone who engages in agritourism will benefit from the new law.  The law is designed to address agritourism activities that diversify an existing farm—where the activities occur on land that is otherwise engaged in agricultural production. For example, a person who purchases 10 acres of vacant land with the intent of creating a corn maze and petting farm will not benefit from the law because there is no agricultural production already taking place on the land. If the land is first involved in agricultural production, added agritourism activities will fall under the new law.
  2. Visitors to agritourism operations must take more responsibility for their own safety.  The law recognizes that there are inherent dangers on farms that can be beyond the control of agritourism providers. Visitors who wish to participate in an agritourism experience must be aware of these dangers and be prepared to protect themselves by following directions, paying attention to surface conditions, being cautious around animals and equipment, supervising their children and generally exercising reasonable care while on the farm.
  3. Agritourism providers must be prepared to meet the law’s signage requirements.  When the law becomes effective, agritourism operators should have proper warning signs posted. Providers who fail to post the right sign in the right place will lose the law’s immunity protections.
  4. Local officials must treat free and fee-based agritourism activities equally.  Unlike some agricultural laws, there is no distinction in the new law between commercial agritourism businesses and free agritourism activities like educational farm tours; the law applies in the same way regardless of whether the activity is fee-based or free, as long as it’s conducted on a “farm.”
  5. Counties and townships must identify public health and safety issues and develop appropriate zoning standards. Counties and townships must be prepared to recognize agritourism situations that pose health and safety concerns due to the size and location of a structure, ingress and egress on the property or the size of a parking area. If a public health or safety issue is identified and the county or township wants to regulate the issue, it must have enacted zoning standards that address the issue.

Read SB 75 on the Ohio General Assembly’s website here.

Post Script:  Governor Kasich signed this legislation on May 17, 2016; the new law becomes effective on August 16, 2016.

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