To our friends, clients and colleagues in local and regional government, higher education and the nonprofit sector, welcome to our latest Monday Message from the Public Law Group at McDonald Hopkins. In today’s email, assembled by attorneys Margaret O’Bryon, Kelsey Smith and Kevin Butler, you’ll find insights into areas of law we’re watching on your behalf.

In today’s edition:

• After Bedford’s nuisance ordinance repeal, what to look for in your code
• Ohio workers’ comp updates: Violations of specific safety requirements
• General Assembly expands locations where liquor may be served, consumed; curbs local bans on plastic bags
• U.S. House, Treasury avoid shutdown with compromise spending bill

After Bedford’s nuisance ordinance repeal, what to look for in your code

Multiple news sources and the American Civil Liberties Union of Ohio reported last week that the City of Bedford agreed to settle a lawsuit brought by the ACLU and other parties challenging the constitutionality of Bedford’s criminal activities nuisance ordinance. In the settlement agreement, the city agreed to repeal its ordinance and pay $350,000, part of which is intended to be spent training the city’s officials, landlords and tenants on fair housing law.

Most criminal activities nuisance ordinances are meant to deter repeated criminal behavior by assessing upon a property owner the municipality’s cost of responding to the same address multiple times within a limited period. Often landlords have pursued as a remedy eviction against tenants whose behavior triggers the city’s warnings, rather than face the threat of being assessed hefty nuisance-abatement costs by the municipality.

Bedford’s ordinance came under fire because it was alleged to have penalized tenants who themselves called to complain about suspicious activity or request police assistance; under Bedford’s code, those calls could trigger a nuisance designation just as others’ criminal behavior might. The plaintiffs in the federal suit alleged Bedford’s enforcement of the code violated tenants’ constitutional rights and the Fair Housing Act.

Not all criminal nuisance codes are written alike, but municipal officials and attorneys interested in avoiding similar litigation may wish to scour their ordinances for language that, as the Bedford settlement agreement suggests, “penalizes any resident, tenant, or landlord as a result of requests for police or emergency assistance, the truthful use of the 911 system, or for otherwise asking for police or government help.” We are of course available to assist.

Ohio workers’ comp updates: Violations of specific safety requirements

Today we begin a series of brief updates on Ohio workers’ compensation law aided by our Public Law team member and veteran workers’ compensation attorney Margaret O’Bryon. Margaret has tracked changes to the workers’ comp statute that went into effect on September 15 with the passage of Ohio H.B. 81. All employers covered by the workers’ compensation system are wise to take note.

Today we discuss claims based on violations of specific safety requirements, or VSSRs. The Revised Code, at R.C. 4101.12, makes every employer responsible for providing a safe work environment and adhering to all safety rules. Injured workers may file to receive an additional award within the workers’ compensation system if an injury occurred as a result of the employer’s violation of a safety requirement.

The additional award may range from 15 percent to 50 percent of the maximum weekly allowance compensation rate granted to the injured worker. Further, the Revised Code allows the Industrial Commission of Ohio to impose a penalty of up to $50,000 for two or more VSSR violations occurring within a 24-month period. Finally, the filing of a VSSR claim does not prohibit the injured worker from filing other types of actions such as intentional tort or third-party lawsuits in civil courts.

H.B. 81 has changed the filing time for VSSR awards. Applications for awards based on VSSRs must now be filed within one year “after the date of injury or death or within one year after the disability due to the occupational disease began.” Previously, injured workers had two years in which to file for a VSSR award.

This change in law applies to workers’ compensation claims arising on or after Sept. 15, 2020, and brings the statute of limitations in line with the statute of limitations for filing a claim for a work-related injury, which was changed from two years to one year in 2017.

In upcoming editions of the Monday Message, we’ll discuss the remaining workers’ comp changes brought about by H.B. 81. Meanwhile, contact Margaret O’Bryon for assistance.

General Assembly expands locations where liquor may be served, consumed; curbs local bans on plastic bags

The General Assembly last week ushered through H.B. 669, and with it an expansion of where liquor can be served on or near the premises of permit holders. Introduced in May in an effort to give bar and restaurant proprietors relief from the coronavirus shutdown, the measure will allow liquor to be consumed in the following places in addition to the places allowed under a particular permit:

• In the permit holder’s parking area and elsewhere outside on the permit holder’s property.
• In any outdoor area on private property adjacent to the permit holder’s property, with consent of the neighboring property owner.
• In any outdoor area on public property adjacent to the permit holder’s property, with consent of a municipality’s executive officer or a township’s trustees.

Local officials and their police agencies should note the change, which is not meant to be permanent: the expanded list of places where liquor can be served sunsets on December 31, 2022.

Last week the House also concurred in the Senate’s amendments to H.B. 242, which now heads to Gov. Mike DeWine’s desk for his signature. Once signed, as we wrote when Senate passed the measure in May, the bill will prohibit home-rule counties, limited home-rule townships and municipalities from imposing a tax or fee on “auxiliary containers” (plastic and paper bags, Styrofoam cups, plastic straws and cardboard containers) and will allow these products to be used anywhere in the state.

H.B. 242 would have the effect of undoing Cuyahoga County's current bag ban and any others like it, but the new state law will sunset after 12 months, meaning the plastic-bag debate may one day be taken up again.

U.S. House, Treasury avoid shutdown with compromise spending bill

The federal government will operate through Dec. 11, our team member Kelsey Smith writes in a blog post, now that the House has passed a compromise appropriations bill that will provide additional commodity credit for farmers and nutrition relief for schoolchildren and families impacted by the pandemic, among other items negotiated between the lower chamber and the White House. Read more on the temporary measure here and stay tuned to the Monday Message for updates as any talks in Washington involving COVID-19 aid unfold.

If you have questions or need assistance on any of the matters we’ve covered above or with your legal needs in general, please feel free to contact any member of the McDonald Hopkins Public Law team.

Have a great week!

Teresa Metcalf Beasley
Chair, Public Law