By Michael R. Nakon, Esq. and Matthew N. Danese, Esq.
As the COVID-19 pandemic continues to grip states across the country, Ohio businesses have been among the earliest to feel the effects of a state imposed Stay at Home Order, with some non-essential businesses choosing to ignore the mandates of Governor DeWine and Ohio's Director of Health, Dr. Amy Acton. Businesses must be aware however, that not only does this choice increase the risk of contamination and spread of COVID-19, but it also exposes the business to legal risks exceeding the benefit of continued, non-compliant business.
Under the orders issued by Dr. Acton restricting mass public gatherings and operation of certain businesses, including the Stay at Home Order, local boards of health and local law enforcement have broad authority to enforce these restrictions and prosecute individuals and businesses violating the same. Under R.C. 3701.99(C), any business or individual found to be in violation of the Stay at Home Order may be subject to criminal charges of a second-degree misdemeanor, which is punishable by a fine up to $750.00, up to 90 days in jail, or both. Separate and apart from the authority granted by the Stay at Home Order, Ohio Courts have long applied nuisance law to shut down businesses which the state finds to be operating at a danger to the health and welfare of the public. Equally, many commercial leases contain clauses against the commission of illegal activity on the leased premises. Because continued operation of a non-essential business would constitute a second-degree misdemeanor, commercial lessees would expose themselves to potential termination of their lease for cause without recourse against the lessor.
It seems some businesses are testing the willingness of local authorities to enforce the Stay at Home and related orders. Recent filings indicate there is little hesitance on their part. For instance, on April 7, 2020, the Cuyahoga County Board of Health filed a lawsuit against Seconds City of Parma Heights for operating a non-essential business in violation of the Stay at Home Order, and moved for an injunction to close the business. The Parma Height Police Department previously issued a misdemeanor citation to Seconds City for violating the Stay at Home Order under R.C. 3701.352. The same day the Board moved for the injunction, the Court granted it and shut down Seconds City. The Court condemned the continued operation of the business as an affront to public health, and imposed severe consequences should the business continue to operate in violation of the Court's order, including contempt sanctions, fines, and even jail time.
This was hardly the first instance in Ohio of local enforcement of the Stay at Home Order. On March 17, 2020, the Cincinnati Police Department shut down a local watering hole that continued to serve dine-in food and beverage to customers in violation of the Stay at Home Order. Not only did the police board up the business, but city officials also indicated that the city would seek to revoke the bar's liquor permits and food service licenses, a harsh – but permissible – penalty for non-compliance.
In sum, non-essential businesses which continue to operate in violation of the Stay at Home Order may not only have their business shut down and boarded up by local law enforcement, but are also subject to termination of their commercial lease, revocation of the liquor and food licensing, monetary fees, and up to 90 days in jail. Simply put, the risk of non-compliance is not worth the reward.
This article provides an overview and summary of the matters described therein. It is not intended to be and should not be construed as legal advice on the particular subject.