On April 2, 2020, Ohio Department of Health Director, Dr. Amy Acton, signed an updated order to extend measures that had previously been set to expire on April 6, 2020. Aside from extending the original guidelines to May 1, 2020, the new order contains additional guidance for local authorities tasked with its enforcement.
Creation of a Dispute Resolution Commission
With the delegation of enforcement to local authorities across Ohio, conflicts in interpreting the order are bound to arise. Ohio has over 100 local health departments, many of whom have already begun to opine on which businesses and activities qualify as “essential” under the order. If any of these departments issue a determination under the Order that is in conflict with another health department’s determination, then the conflict may be submitted by either of the local health departments or an entity or person subject to the determination to the Ohio Department of Health’s newly formed Dispute Resolution Commission, which will have the final say.
Further Guidance on Enforcement and Penalties for Violation
The updated order also contains an expanded explanation of Section 17 regarding enforcement, citing R.C. 3701.352 and 3701.56 specifically. The previous order delegated authority to local health departments to answer questions raised by any public official enforcing this Order. While that guidance remains, new language clarifies that local health departments are not obligated to “provide advisory opinions to nongovernmental entities.” The updated order also provides that a violation of R.C. 3701.352 is a misdemeanor of the second degree, which can include a fine of not more than $750 or not more than 90 days in jail, or both.
The updated order’s emphasis on determinations being made by local health departments underscores the importance of their role in enforcement efforts. As previously advised, if local governments believe that enforcement of the order is warranted, law enforcement should first consult with their local health department.
Maximum Capacities for Certain Businesses
Stores that sell groceries or medicine, such as supermarkets or pharmacies, shall now determine and enforce the maximum capacity of persons permitted inside at any one time, and prominently display at every entrance the maximum capacity number. Lines that form inside or outside these stores must maintain a six-foot distance between patrons not residing in the same household.
Garden centers and nurseries have been expressly added to the “hardware and supply stores” category of “essential businesses,” and outdoor activities such as fishing are permitted so long as social distancing of six-feet can be implemented.