The following article was originally published in the Ohio Capital Journal and published on News5Cleveland.com under a content-sharing agreement.
Last spring, a Tiffin bar was caught serving alcohol for on-site consumption when Ohio bars were supposed to be closed.
In the fall, a Parma Heights bar was cited for serving alcohol past 10 p.m. in violation of the pandemic curfew. Two weeks later, it was cited again.
On Sunday, an Athens bar was cited when Ohio University fans were seen dancing on bar stools upon the Bobcats’ upset win in the NCAA basketball tournament.
Bars and restaurants have faced stiff penalties over the past year for violating public health orders issued to prevent the spread of COVID-19. An Ohio bill seeks to expunge all of these violations and return the fine money to business owners.
House Bill 127 would not just vacate COVID-19 violations, but would prevent the state from enforcing any pandemic health orders toward businesses in the near future.
If enacted, businesses would still be responsible for following traditional health and safety requirements unrelated to the pandemic. They would not, however, face any consequences if patrons are not masked or staying socially distanced from one another.
These are welcome proposals for those representing and advocating for Ohio’s service industry who believe their businesses have been unfairly targeted by health order enforcement.
The bill’s sponsor, Rep. Derek Merrin, R-Monclova, argued that Ohio businesses “have suffered enough” from the economic fallout of the pandemic and thus should not have to face further scrutiny by state investigators enforcing COVID-19 rules.
Bars, restaurants have faced penalties
In the early days of the pandemic, Gov. Mike DeWine’s administration temporarily shut down bars, restaurant dining rooms and other businesses not deemed “essential” as part of an aggressive approach to slow the spread of coronavirus.
DeWine eventually allowed businesses to reopen in May, with industry-specific requirements meant to keep customers and employees safe.
The “Dine Safe Ohio” order for bars and restaurants mandated face coverings for employees, social distancing for everyone, a 10-person cap on dining reservations and other rules.
Days before the businesses were set to reopen, the governor announced that law enforcement agencies and health officials would be working together to enforce compliance with the COVID-19 orders. Among them would be agents with the Ohio Investigative Unit conducting regular inspections with businesses throughout the state.
Citations are heard by the Ohio Liquor Control Commission, which issues penalties if the businesses are found to be in violation of any rules.
The vast majority of Ohio businesses have complied with DeWine’s health orders. As of late July 2020, OIU had conducted more than 14,000 inspections — with only 90 citations issued.
Among those cited were a number of bars in Put-In-Bay, where dozens of island workers had tested positive for coronavirus. Large crowds of Lake Erie party-goers could be seen gathered at poolside bars in close proximity.
The Ohio Capital Journal reviewed more than 200 cases heard by the Ohio Liquor Control Commission that have dealt with pandemic-related violations. The alleged offenses ranged from March through December 2020.
In the vast majority of cases, the Commission offered businesses the choice of paying a fine or having the liquor license temporarily suspended. The amount of fines levied in these cases totaled $277,150, with individual fines varying based on the offense.
Close to half of the cases involved a curfew violation; DeWine issued a 10 p.m. last call for alcoholic sales in July which stayed in effect until this February.
Some bars were cited for multiple curfew violations over the course of 2020, with each subsequent fine larger than the last.
The most egregious health order violations resulted in bigger fines of up to $25,000 or, in certain cases, the Commission revoking the establishment’s liquor license.
OCJ identified 10 such examples, though in six of them the business was offered a chance to pay a fine instead of losing its license. The revocation cases typically have involved a business cited numerous times for violating health orders or compounding a violation with a non-pandemic issue (such as inspectors finding drugs on the property).
Earlier this year, protesters critical of DeWine’s pandemic response directed their anger at the head of the Ohio Liquor Control Commission. OCJ reported that 10 protesters gathered outside the home of the commission’s chairwoman Deborah Pryce, with at least two of them bringing firearms. A month later,Pryce retired.
‘Compliance has been very high’
A pair of advocates for the service industry recently testified in favor of HB 127 and outlined reasons they think health order violations should be expunged.
One is Edward Hastie, a Columbus lawyer who serves as legal counsel for the Ohio Licensed Beverage Association and owns several liquor permit businesses.
He also represents other restaurant clients and last year challenged a Columbus curfew order in court.
Also testifying was Aaron Crater of Ohio Barhop, a group advocating for service industry professionals he founded last year as a critical response to DeWine’s curfew order.
Testimony centered on these arguments:
Have suffered enough — Like the bill sponsor has said, Hastie and Crater say Ohio businesses have faced enough significant economic hardships to not warrant further health order scrutiny. Hastie said the curfew took as much as 2,000 hours of business away from bars.
Enforcement criticism — These advocates take issue with the OIU & Ohio Liquor Control Commission enforcing state health orders. Crater characterized the situation as executive branch writing orders, enforcing and adjudicating them, “doing a complete end run around the legislature and judiciary.” Hastie thinks the service industry has been unfairly targeted.
Deserving of leniency — “Ohio’s liquor permit holders deserve a second chance,” Hastie said. They deserve, he testified, “a chance afforded to felons and criminals — the chance to expunge their record.”
"Compliance has been very high,” Hastie told lawmakers. “The industry has done their part to help flatten the curve. Giving the ability for expungement will allow this industry to move on and move forward.”
Republican legislators on the House State and Local Government Committee seemed to be in agreement, including Rep. Rodney Creech, R-West Alexandria. Creech said he owns a café business in his district and understands how other business owners have been “destroyed” because of the pandemic.
“We were fortunate to not have any offenses,” Creech said. “We never closed down. I was too bull-headed. I have employees with families. We should’ve shut down, we just never did.”
Creech complained that businesses have had to face all of the risks of health order compliance.
“Is it safe to say it doesn’t matter how many offenses a place has had?,” he asked Hastie. “I mean, it still doesn’t reflect upon the business. It reflects upon the customers in the business.”
A similar argument was made Monday by Rep. Jay Edwards, R-Nelsonville, in response to the Athens bar getting cited for patrons celebrating the Bobcats basketball victory. Edwards called it unfair that a private business was cited for not being able “to control the madness” while hundreds of excited fans gathered outside on the street.
Offering fairness to businesses
There is another piece of legislation being considered that relates to the executive branch’s treatment of businesses during a public health crisis.
The “Business Fairness Act” was reintroduced in the Ohio House of Representatives, with a companion bill introduced in the Ohio Senate.
These bills are meant to be a response to the state having closed certain businesses last spring while other “essential” businesses were allowed to stay open. The legislation would prevent the state from closing any business during a pandemic or “bioterrorism event” so long as they can otherwise abide by safety and health protocols.
Republican Reps. Shane Wilkin of Lynchburg and Jon Cross of Kenton are the main sponsors in the House, which approved their similar bill last year by a vote of 77-10. This marked one of the only examples of Democratic lawmakers supporting Republican legislation curbing the authority of the state health department.
Their bill died in the Senate last year, leading Republican lawmakers to try again this term.
Separately, Rep. Al Cutrona, R-Canfield, recently introduced a bill that would exempt bars from any future curfew orders.