Dispute Resolution Commission Established to Determine Essential Businesses
By: David M. Cuppage
In accordance with the Ohio Department of Health’s amended Stay At Home Order, which runs through May 1 at 11:59 p.m., a Dispute Resolution Commission (DRC) was established to evaluate and render guidance in situations where two local health departments have come to a different conclusion for similar businesses on what is or is not an essential business.
The Stay At Home Order may be enforced by state and local law enforcement agencies including “boards of health of a general or city health district, health authorities and officials, officers of state institutions, police officers, sheriffs, constables, and other officers and employees of the state or any county, city, or township” to the extent set forth in Ohio law.
Violations of the Stay At Home Order constitute a misdemeanor of the second degree and may result in charges being filed in municipal court.
In addition, a violation of the Stay At Home Order may also result in a petition to the court of common pleas in the county in which the offense is allegedly occurring for injunctive or other appropriate relief including an order for a business to close.
If a public official enforcing the order has questions regarding what services are prohibited or what is an essential business or non-essential business, the Director of Health delegates to local health departments the authority to answer questions in writing.
When local health departments reach inconsistent conclusions, the question can be submitted to the Dispute Resolution Commission by completing a Dispute Resolution Form and submitting it to it to Dispute.Resolution@odh.ohio.gov.
The Dispute Resolution Commission will review the conflict and make a determination as to the application of the order to the conflict. The decision of the Dispute Resolution Commission shall be final.
This week, the state announced that the DRC was open for business, and identified the panel’s members as Ohio Department of Commerce Director Sheryl Maxfield; Development Services Agency Director Lydia Mihalik; and Public Utilities Commission of Ohio Chairman Sam Randazzo.
While the DRC’s decision is final and non-appealable, Ohio’s courts will still have a role to play in resolving enforcement issues, whether misdemeanor charges or injunctive relief.
It is important for all businesses to carefully review the Stay At Home Order and be prepared to document its position that it is an essential business. Documentation would include identifying core businesses, product inventory, services, customer contracts, purchase orders, and job sites worked.
The attorneys at McCarthy Lebit remain available to discuss any questions or needs that your business may have. We are continuing to stay apprised of COVID-19 developments and will continue to update our materials accordingly.
David Cuppage is a principal at the Cleveland, OH-based law firm of McCarthy, Lebit, Crystal & Liffman
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