Agritourism operators: now is the time for liability risk management

Many of Ohio’s farm markets, u-picks, farm petting zoos, and other “agritourism” operations are preparing to open for their spring and summer activities.  While these types of agritourism activities are popular, they raise unique liability concerns. That’s because there is always the risk of an injury or harm when bringing people onto the farm, whether allowing them to be near animals, riding on equipment, in crop and orchard areas, or engaging in physical activities.  Along with readying the farm for the new season, agritourism operators should also plan for the possibility of a liability incident. 

Here are five actions agritourism providers can take to manage liability risk.

1. Conduct a safety review.   Inspect your operation with visitor safety in mind.  Remember, many visitors have never been on a farm or don’t understand what might harm them on a farm. Examine all areas visitors will be in, including surrounding “off limits” areas visitors might try to access, and identify any possible safety hazards.  Pay extra attention to areas children will use. Consider these questions:
   • Are the facilities, fences, gates, steps, play areas, and other structures in good repair?
   • Are doors and gates working and latching properly?
   • Are pesticides, herbicides, or chemicals out of sight and inaccessible?   
   • Are animal enclosures sound, do any “dangerous” animals need to be fully off limits to visitors, and are there handwashing stations near animal contact areas?
   • Are there any accessible dangers that might attract children, such as ladders, equipment, lagoons, large tractor tires, and wells?
   • Are parking areas and walkways sufficiently sized and buffered from traffic?

Look for the potential dangers, then take actions such as making repairs; installing blockades, fences, locks, or other structures to keep visitors away; putting up signs and warnings; providing instructions or maps; expanding parking areas or walkways; and removing unnecessary dangers.

2. Complete our Agritourism Ready course.  Be prepared for the possibility of an emergency situation—both natural and man-made disasters can raise the need for an emergency response. How an operation responds to an emergency can reduce harm to visitors and ultimately affect the operation’s risk of liability or harm.  OSU offers a curriculum that helps agritourism operations reduce risks by developing an emergency management plan.  Access this valuable and free resource at https://u.osu.edu/agritourismready/.
3. Train employees.  A business is legally responsible for the negligence of its employees, so it’s important to reduce the risk that an employee’s actions will cause or contribute to a visitor’s harm.  Provide thorough safety training to agritourism employees.  Make sure employees know how to do the job, including activities like operating equipment, maintaining and cleaning visitor areas, handling animals, overseeing children, and responding to a safety incident.
4. Obtain agritourism insurance coverage.  Insurance is an excellent liability management tool.  But be aware that a typical farm insurance policy does not cover agritourism activities, and a separate endorsement or policy may be necessary.  Even if a farm has a separate endorsement for agritourism, it’s still important to ensure that any new agritourism activities fall under the agritourism coverage. Now is the time to schedule a visit with the insurance provider and review the insurance policy.  Don’t be secretive about what you’re doing in your operation.  Share all activities with the provider and ensure that each activity is covered by the policy.  If an activity is not covered or will require costly additional coverage, weigh the risk, costs, and benefits of continuing to offer the activity.
5. Install the Ohio agritourism immunity sign.  I’ve been surprised recently by how many operations I’ve visited that do not have an agritourism immunity sign on display. Posting the sign is a critical risk management tool.  That’s because Ohio law provides civil immunity for qualifying agritourism providers if a visitor suffers harm or injuries due to the “inherent risks” of being on a farm.  To receive the immunity, however, an agritourism provider must post the required agritourism immunity sign at the entrance to or near the agritourism activities.  The agritourism immunity sign warns visitors that the operation is not liable for harm from inherent risks and that they are assuming the risk of participating in agritourism activities. But while it’s an important tool, don’t let the sign replace all of the other recommendations provided in this article.  Read more about the immunity law and the agritourism immunity sign in our law bulletin, Ohio’s Agritourism Law, available on farmoffice.osu.edu.

Agritourism is a thriving industry in Ohio. Taking legal precautions to manage liability risk will help ensure that agritourism remains an important component of Ohio agriculture. To learn more about legal issues in agritourism, visit OSU’s Agritourism Law Library on the Farm Office website at farmoffice.osu.edu/law-library.

Appeals Court upholds injunction against wedding barn

Let’s hope the marriages that began at Stoney Hill Farm in southwestern Ohio fare better than the wedding barn where they started.  Yet another lawsuit over the Stoney Hill wedding barn has ended in an adverse ruling for the owner.  The Second District Court of Appeals recently upheld a permanent injunction that for now, prevents the owner from renting the barn for weddings and other events.  

The case highlights the continuing conflicts across Ohio over what to do with wedding barns on farms.  Should wedding barns be subject to local zoning and state building and fire codes? Or should wedding barns qualify for the exemptions from zoning, building, and fire codes Ohio law provides for agricultural types of land uses?  It’s a question that has often ended up in court, as the statutory zoning exemptions for agriculture and agritourism in Ohio law are unclear and require judicial interpretation. 

How we got here

The legal battles against Powlette, the owner of Stoney Hill Farm, started in 2018.   The owner constructed a new two-story, 8,000 square foot barn on 26 acres he had purchased in Miami Township.  Declaring that the barn would be used for the agricultural purpose of housing horses, Powlette received an exemption from local zoning regulations for the barn.  That’s because Ohio’s “agricultural exemption” removes township zoning authority from agricultural land uses and structures to ensure that agriculture can take place in Ohio’s unincorporated areas. 

But when Powlette later advertised the barn as Stoney Hill Rustic Weddings and began using it to host weddings and events, the township filed a notice of zoning violation.  The township’s zoning resolution did not permit those types of uses in Powlette’s zoning district. The Board of Zoning Appeals and Montgomery County Court of Common Pleas reviewed the facts and determined Powlette was using the barn not just for agriculture but as a place of “public assembly,” in violation of zoning regulations. 

Powlette then planted grapevines on the property and began making wine, claiming those activities allowed him to continue using the barn under another part of the agricultural exemption.  That part gives zoning and building code exemptions for buildings that are used primarily for vinting and selling wine that are on land where there is viticulture, the growing of grapes. The township again disagreed that Powlette could host weddings and events in the barn and sought a permanent injunction against its continued use.  The Montgomery Township Common Pleas court reviewed Powlette’s use of the barn and determined that the winery-based zoning exemptions did not apply or allow him to hold weddings and events.  The trial court issued a permanent injunction, preventing Powlette from renting, leasing, or operating weddings, receptions, parties, or other celebratory events in the barn for a fee.  Powlette appealed the injunction to the Second District Court of Appeals, which brings us to the court’s decision on September 30, 2022.

As a side note, the Montgomery Court of Common Pleas fined Powlette $50,000 last month for continuing to hold weddings in the barn despite the permanent injunction issued by the court.  Powlette’s response is that he is not in violation of the injunction since he no longer charges a fee for the weddings.  He claims an Ohio Supreme Court case allows him to have free weddings for guests who purchase his wine. 

Additionally, note that there have been several other legal actions against Powlette from the Montgomery County Board of Building Regulations and the Fire District for building code and fire code violations, also based on the use of the structure for weddings and events and also resulting in rulings against Powlette.  And public attention has been high, with television and newspaper reporters covering the township and neighborhood conflicts over the late night, noisy wedding parties at Stoney Hill.

The Court of Appeals decision

The question Powlette raised with the Court of Appeals in the recent case is whether the Montgomery County Common Pleas court properly granted the permanent injunction.  Powlette maintains that the trial court erred by failing to find that the Stoney Hill barn is used for agriculture or agritourism, which would exempt the structure from zoning.   The appellate court reviewed the trial court’s finding that the only agricultural use in the barn was the storing of hay in the upper level of the barn, which also contained outdoor decks, decorative windows, chandeliers, two restrooms, a staging area for bridal parties, a prep area with cabinets and a refrigerator, and electrical, heating and cooling systems.  The evidence indicated, however, that the hay was stored in the barn for use as decorations or seating and not as animal feed.  The court did not see error in the trial court’s conclusion that the barn was constructed for events and not for an agricultural purpose.

The appellate court also agreed that the wedding barn should not be exempt from zoning as agritourism.  Ohio law defines agritourism as an agriculturally related educational, cultural, historical, entertainment, or recreational activity on a farm.  Powlette argued that wedding guests were educated about agriculture, were entertained by interacting with animals and taking wagon rides, that rural weddings are historical and cultural events, and that gathering for a rural wedding in a recreational event.  However, the court questioned how those activities were “agriculturally related.” With little explanation, the court stated that it could not see any connection between the wedding venue in the second story of the barn and any agricultural activities occurring on the property.  “Instead, the barn was built in order to serve as an event venue in a rural, agricultural setting,” the court concluded.

The court also disagreed with Powlette’s second argument against the trial court, that the permanent injunction it granted was overbroad and foreclosed him from any future activities that would qualify as agritourism.  Quickly dispensing with that argument, the court stated that Powlette could request that the injunction be dissolved if he properly engaged in an exempt agricultural use, such as establishing a vineyard and vinting operation as the primary use of the barn. 

What now for wedding barns?

Given that Powlette has begun planting grapes and making wine, a request to dissolve the injunction against him may be the next step of the Stoney Hill wedding barn story.  But the bigger questions remain:  should wedding barns like Stoney Hill be exempt from zoning oversight?  Should an owner be permitted to build or renovate a barn for weddings and events in any rural area, or should local zoning be able to regulate where wedding barns can be?  For now, the answer from the Second District Court of Appeals is clear:  barns built to serve as wedding venues aren’t agriculturally related to the land, don’t have an agricultural purpose, and should not be exempt from zoning.  But like marriage, the future of whether wedding barns are subject to rural zoning in Ohio could be subject to change.

Read the court’s decision in Miami Twp. Bd. of Trustees v Powlette.

The Ag Law Roundup

It’s time for another roundup of legal questions we’ve been receiving in the Agricultural & Resource Law Program.  Our sampling this month includes registering a business, starting a butchery, noxious weed liability in a farm lease situation, promoting local craft beer at a farmers market, herd share agreements, and agritourism’s exemption from zoning.  Read on to hear the answers to these questions from across the state.

I want to name my farm business but am not an LLC or corporation.  Do I have to register the name I want to use for the business?

Yes, if your business name won’t be your personal name and even if the business is not a formally organized entity such as an LLC.  You must register the business with the Ohio Secretary of State.  First, make sure the name you want to use is not already registered by another business.  Check the name availability using the Secretary of State’s business name search tool at https://businesssearch.ohiosos.gov/.  If the name is available, register the name with the Secretary of State using the form at https://www.sos.state.oh.us/businesses/filing-forms–fee-schedule/#name.  If there is already a business registered with the name you want to use, you might be able to register a similar name if your proposed name is “distinguishable” from the registered name. The Secretary of State reviews names to make sure they are not already registered and are distinguishable from similar names.  See the Guide to Name Availability page for examples of when names are or are not distinguishable from one another.

I am interested in starting a small butchery.  What resources and information are helpful for beginning this endeavor?

There are legal issues associated with beginning a meat processing operation, and there are also feasibility issues to first consider.  A good resource for initial considerations to make for starting a meat processing business is this toolkit from OSU at https://meatsci.osu.edu/programs/meat-processing-business-toolkit.   A similar resource that targets niche meat marketers is at https://www.nichemeatprocessing.org/get-started/.  On the legal side, requirements vary depending on whether you will only process meat as a custom operator or fully inspected operator, and if you also want to sell the meat through your own meat market.  The Ohio Department of Agriculture’s Division of Meat Inspection has licensing information for different types of processors here:  https://agri.ohio.gov/divisions/meat-inspection/home.  If you also want to have a retail meat market, you’ll need a retail food establishment (RFE) license from your local health department.  To help you with that process, it’s likely that your health department will have a food facility plan review resource like this one from the Putnam County Health Department.

Is Ohio’s noxious weeds law enforceable against the tenant operator of my farm, or just against me as the landowner?

Ohio’s noxious weed law states that the township trustees, upon receiving written information that noxious weeds are on land in their township, must notify the “owner, lessee, agent, or tenant having charge of the land.”  This language means that the trustees are to notify a tenant operator if the operator is the one who is in charge of the land where the noxious weeds exist.  The law then requires the notified party –which should be the tenant operator—to cut or destroy the noxious weeds within five days or show why there is no need to do so.  The concern with a rental situation like yours is that if the tenant does not destroy the weeds in five days, the law requires the township to hire someone to do so and assess the costs of removal as a lien on the land.  This puts you as the landowner at risk of financial responsibility for the lien and would require you to seek recourse against the tenant operator if you want to recover those costs.  Another option is to take care of removing the noxious weeds yourself, but that could possibly expose you to a claim of crop damages from the tenant operator.  A written farm lease can address this situation by clearing shifting the responsibility for noxious weeds in the crop to the tenant operator and stating how to deal with crop damages if the landowner must step in and destroy the noxious weeds.

Can we promote local craft beers at our farmers market?

Ohio established a new “F-11” permit in H.B. 674 last year.  The F-11 is a temporary permit that allows a qualifying non-profit organization to organize and conduct an event that introduces, showcases, or promotes Ohio craft beers that are sold at the event. There are restrictions on how long the event can last, how much beer can be sold, who can participate in the event, and requirements that food must also be sold at the event. The permit is $60 per day for up to 3 days.  Learn more about the permit on the Department of Commerce website at  https://com.ohio.gov/divisions-and-programs/liquor-control/new-permit-info/guides-and-resources/permit-class-types.

Can a goat herdsman legally provide goat milk through a herd share agreement program? 

Herd share agreements raise the raw milk controversy and whether it’s legal or safe to sell or consume raw milk.  Ohio statutory law does clearly prohibit the sales of raw milk to an “ultimate consumer” in ORC 971.04, on the basis that raw milk poses a food safety risk to consumers.  But the law does not prohibit animal owners from consuming raw milk from their own animals.  A herd share agreement sells ownership in an animal, rather than selling the raw milk from the animal.  Under the agreement, a person who pays the producer for a share of ownership in the animal may take their share of milk from the animal.  The Ohio Department of Agriculture challenged the use of herd share agreements as illegal in the 2006 case of Schitmeyer v. ODA, but the court did not uphold the ODA’s attempt to revoke the license of the dairy that was using herd share agreements.  As a result, it appears that the herd share agreement approach for raw milk sales is currently legally acceptable.  But many still claim that raw milk consumption is risky because the lack of pasteurization can allow harmful bacteria to exist in the milk. 

Can the township prohibit me from having a farm animal petting zoo on my hay farm?

It depends whether you qualify for the “agritourism exemption” granted in Ohio law.  The agritourism exemption states that a county or township can’t use its zoning authority to prohibit “agritourism,” although it may have same zoning regulations that affect agritourism buildings, parking lots, and access to and from the property.  “Agritourism” is an agriculturally related entertainment, recreational, cultural, educational or historical activity that takes place on a working farm where a certain amount of commercial agricultural production is also taking place. If you have more than ten acres in commercial production, like growing and selling your alfalfa, or you have less than ten acres but averaged more than $2,500 in gross sales from your alfalfa, you qualify under the agritourism exemption and the township zoning authorities cannot prohibit you from having your petting zoo.  However, any zoning regulations the township has for ingress and egress on your property, buildings used primarily for your petting zoo, or necessary parking areas would apply to your petting zoo activity. If you don’t qualify as “agritourism,” the township zoning regulations could apply to the petting zoo activity, and you must determine whether a petting zoo is a permitted use according to your zoning district, which could depend upon whether or not you want to operate the petting zoo as a commercial business.

The Ag Law Roundup

It’s time to round up a sampling of legal questions we’ve received the past month or so.  The questions effectively illustrate the breadth of “agricultural law,” and we’re happy to help Ohioans understand its many parts.  Here’s a look at what has come our way:

I’m considering a carbon credit agreement.  What should I look for?   Several types of carbon credit agreements are now available to Ohio farmers, and they differ from one another so it’s good to review them closely and with the assistance of an attorney and an agronomist.  For starters, take time to understand the terminology, make sure you can meet the initial eligibility criteria, review payment and penalty terms, know what types of practices are acceptable, determine “additionality” requirements for creating completing new carbon reductions, know the required length of participation and how long the carbon reductions must remain in place, understand how carbon reductions will be verified and certified, be aware of data ownership rights, and review legal remedy provisions.  That’s a lot!  Read more about each of these recommendations in our blog post on “Considering Carbon Farming?”

I want to replace an old line fence.  Can I remove trees along the fence when I build the new fence?   No, unless they are completely on your side of the boundary line.  Both you and your neighbor co-own the boundary trees, so you’ll need the neighbor’s permission to remove them.  You could be liable to the neighbor for the value of the trees if you remove them without the neighbor’s approval, and Ohio law allows triple that value if you remove them against the neighbor’s wishes or recklessly harm the trees in the process of building the fence.  You can, however, trim back the neighbor’s tree branches to the property line as long as you don’t harm the tree.  Also, Ohio’s line fence law in ORC 971.08 allows you to access up to 10 feet of the neighbor’s property to build the fence, although you can be liable if you damage the property in doing so.

I want to sell grow annuals and sell the cut flowers.  Do I need a nursery license?  No.  Ohio’s nursery dealer license requirement applies to those who sell or distribute “nursery stock,” which the law defines as any “hardy” tree, shrub, plant, bulb, cutting, graft, or bud, excluding turf grass.  A “hardy” plant is one that is capable of surviving winter temperatures. Note that the definition of nursery stock also includes some non-hardy plants sold out of the state.  Because annual flowers and cuttings from those flowers don’t fall into the definition of “nursery stock,” a seller need not obtain the nursery dealer license.

Must I collect sales tax on cut flowers that I sell?  Yes.  In agriculture, we’re accustomed to many items being exempt from Ohio’s sales tax.  That’s not the case when selling flowers and plants directly to customers, which is a retail sale that is subject to the sales tax.  The seller must obtain a vendor’s license from the Ohio Department of Taxation, then collect and submit the taxes regularly.  Read more about vendor’s licenses and sales taxes in our law bulletin at this link.

I’m an absentee landowner who rents my farmland to a tenant operator.  Should I have liability insurance on the land?  Yes.  A general liability policy with a farm insurer should be affordable and worth the liability risk reduction.  But a few other steps can further minimize risk.  Require your tenant operator to have liability insurance that adequately covers the tenant’s operations, and include indemnification provisions in your farm lease that shift liability to the tenant during the lease period.  Also consider requiring your tenant or hiring someone to do routine property inspections, monitor trespass issues, and ensure that the property is in a safe condition. 

My neighbor and I both own up to the shoreline on either side of a small lake–do I have the right to use the whole lake?  It depends on where the property lines lay and whether the lake is connected to other waters. If the lake is completely surrounded by private property and not connected to other “navigable” waters, such as a stream that feeds into it, the lake is most likely a private water body.  Both of you could limit access to your side of the property line as it runs through the lake.  You also have the legal right to make a “reasonable use” of the water in the lake from your land, referred to as “riparian rights.”  You could withdraw it to water your livestock, for example; but you cannot “unreasonably” interfere with your neighbor’s right to reasonably use the water.   The law changes if the lake is part of a “navigable” waterway.  It is then a “water of the state” that is subject to the public right of navigation.  Others could float on and otherwise navigate the water, and you could navigate over to your neighbor’s side.  Public users would not have the riparian rights that would allow them to withdraw and use the water, however, and would be trespassing if they go onto the private land along the shore.

If I start an agritourism activity on my farm, will I lose my CAUV status?  No, not if your activities fit within the legal definition of “agritourism.”  Ohio law states in ORC 5713.30(A)(5) that “agritourism” activities do not disqualify a parcel from Ohio’s Current Agricultural Use Valuation (CAUV) program. “Agritourism,” according to the definition in ORC 901.80, is any agriculturally related educational, entertainment, historical, cultural, or recreational activity on a “farm” that allows or invites members of the general public to observe, participate in, or enjoy that activity.  The definition of a “farm” is the same as the CAUV eligibility—a parcel devoted to commercial agricultural production that is either 10 acres or more or, if under 10 acres, grosses $2500 annually from agricultural production.  This means that land that is enrolled in the CAUV program qualifies as a “farm” and can add agritourism activities without becoming ineligible for CAUV.

Send your questions to aglaw@osu.edu and we’ll do our best to provide an answer.  Also be sure to check out our law bulletins and the Ag Law Library on https://farmoffice.osu.edu, which explain many of Ohio’s vast assortment of agricultural laws.

The Ag Law Harvest

By: Jeffrey K. Lewis, Attorney and Research Specialist, OSU Agricultural and Resource Law Program

Did you know there is a bird with talons larger than grizzly bear claws?  The Harpy Eagle’s back talons can reach lengths of 5 inches, which is larger than a grizzly bear’s claws which reach lengths of around 4 inches. Thankfully, the Harpy Eagle is not usually found in the United States, they are traditionally found in the rainforests of Central and South America.  

The variety and extent of the animal kingdom can be a good analogy when we talk about the scope and variability of agricultural and resource law.  “Ag law” isn’t in and of itself a core area of law, at least not an area of law taught in most law schools across the country.  Those core areas of law are traditionally contracts, constitutional, tort, property, and a few others.  But ag law includes most, if not all, of the core legal subjects.  This includes property law, tax law, tort law, international law, intellectual property law, environmental law, contracts, business, labor and employment, and others.  This week’s edition of the Ag Law Harvest shows you how diverse ag law really is.  We review some legislation moving in parts of the country that deal with tax law, property law, and administrative law.  We also review Federal regulations and court cases that address food law, trademark law, and antitrust law.  

Florida introduces legislation to protect farmers’ preferential tax benefits amid agritourism boom.  Florida’s legislature is hard at work to ensure the success of Florida’s agriculture and agritourism industries.   Recently, Florida’s legislature introduced Senate Bill 1186 and House Bill 717.  The purpose of both bills is to promote Florida’s agritourism industry and protect farmers when it comes to land classification, taxation, and regulation.  Both pieces of legislation look to: 

• Eliminate duplicate regulatory authority over agritourism by preventing local government from enacting regulations that prohibit, restrict, or otherwise limit an agritourism activity from taking place on land classified as agricultural land. 
• Prevent land from being classified “non-agricultural” simply because an agritourism activity takes places on the land, so long as the agritourism activity is taking place on a bona fide farm. 
• Implement a hybrid property taxation scheme which allows the buildings and other structures used for agritourism activities to be assessed at just value and added to the agriculturally assessed value of the land.  

Both bills are currently making their way through their respective chamber’s committees and should be voted on soon.  

Michigan looking to pass legislation to reduce fines for family farmers that do not report accidental workplace deaths to the state.  The Michigan Senate recently passed a substitute for House Bill 4031, which is focused on reducing the fine incurred by family farms for not reporting the death of a family member within eight hours.  Under current Michigan law, a family farm must report any fatality to the Michigan Occupational Safety and Health Administration within eight hours or face a fine of at least $5,000, which is exactly what happened to the Eisenmann family in 2019.  The Eisenmann family ran a family farm and was fined $12,000 after Keith Eisenmann fell to his death while repairing a barn roof.  The bill seeks to reduce the fine for families that are grieving the unexpected loss of a loved one.  Although a family farm will still be required to report the accidental work-related death of a loved one within eight hours, if a family fails to do so, the substitute bill drastically reduces the penalty.  The original bill passed Michigan’s House of Representatives late last year, but the substitute bill passed by the Michigan Senate clarifies the definition of family farm.  The substitute bill now goes back to the House of Representatives for approval.  

Bioengineered food standard now in effect.  January 1st marked the first day of compliance for the Bioengineered Food Disclosure Standard (the “Standard”).  The Standard requires food manufacturers, importers, and certain retailers to disclose to consumers that foods are or may be bioengineered.  The Standard defines bioengineered foods as “those that contain detectable genetic material that has been modified through certain lab techniques and cannot be created through conventional breeding or found in nature.”  The Agricultural Marketing Service has created a list of bioengineered foods to identify the crops or foods that are available in a bioengineered form.  For more information on the Bioengineered Food Disclosure Statement visit https://www.ams.usda.gov/rules-regulations/be.

A bite into the cheesier side of trademark law.  Last month, a federal court in Virginia decided on a dispute between European and American cheesemakers.  The dispute arose over whether the term “Gruyere” should only be used to identify cheeses produced in the Gruyère region of France and Switzerland or whether the term can be used generically to describe a type of cheese, regardless of where the cheese is produced.  The Plaintiffs, two European business groups, filed an application with the United States Patent Trademark Office (“USPTO”) to register “Gruyere” as a certification mark under 15 U.S.C. § 1127 which would only allow cheesemakers to use the term “Gruyere” if the cheese came from the Gruyère region.  The U.S. Dairy Export Council and others (“Defendants”) filed an opposition to Plaintiffs’ application with the Trademark Trials and Appeals Board (“TTAB”).  The TTAB found the term “Gruyere” to be generic term used to describe a type of cheese, not a cheese’s origin.  Plaintiffs’ then filed suit in a federal court in Virginia.  The federal court held that the “Gruyere” term had become a generic term to describe a type of cheese and failed to find the term worthy of trademark protection.  The court reasoned that although the term “Gruyere” may have once been understood to indicate where a cheese came from, over time “Gruyere” became a generic term to describe a type of cheese.  The court noted the term “Gruyere” has become generic overtime because: (1) U.S. regulations allow the use of the term “Gruyere” regardless of where the cheese is produced, (2) there is widespread sale and import of Gruyere cheese that is produced outside the Gruyère region, and (3) “Gruyere” is commonly used in dictionaries, media communications, and cheese industry events to describe a type of cheese without regards to where the cheese is produced.  Plaintiffs have since appealed to the Fourth Circuit Court of Appeals, which means we still have a gooey situation on our hands.  

USDA and Department of Justice announce commitment to protect farmers against unfair anticompetitive practices.  The U.S. Department of Agriculture (“USDA”) and the U.S. Department of Justice (“DOJ”) each announced their shared commitment to enforcing federal competition laws that are aimed at protecting farmers, ranchers, and other agricultural producers from unfair, anticompetitive practices.  In continuing their commitment to enforcing such laws, the agencies released a statement of principles and commitments which include: 

1. Farmers, ranchers, and other producers and growers deserve the benefits of free and fair competition.  The DOJ and USDA are therefore prioritizing matters impacting competition in agriculture. 
2. The agencies will develop an accessible, confidential process for agricultural producers to submit complaints about potential violations of the antitrust laws and the Packers and Stockyards Act.  
3. Increased cooperation between the agencies to enforce the laws that protect agricultural producers and to identify areas where Congress can help modernize rules and regulations.   

As we have seen over the past few months, the federal government is keen on preventing the consolidation of the agricultural industry in order promote fair and equal competition.  The announced commitments and principles demonstrate the government’s continued dedication to cracking down on unfair practices. 

The Ag Law Roundup: your ag law questions answered

It’s time to round up another batch of legal Q&A.  Here are some of questions we’ve recently received in the Farm Office. 

My township recently notified me of having noxious weeds.  They identified “ragweed” as the problem, but the Ohio Revised Code’s list of noxious weeds doesn’t list “ragweed.”  What are my rights?  Under Ohio law, you have five days to respond to the township trustees to explain that no action need to be taken because no noxious weeds exist on the property and that plants were incorrectly identified as noxious weeds.  Therefore, your conversations with the township trustees should have met the legal requirements because you notified them that plants were incorrectly identified as noxious weeds.  Having a written record is always best, just in case there is ever a dispute, so you may want to follow up with the townships trustees in an email, just to confirm that no action need to be taken. 

I read that each landowner has a ten foot right of access on either side of the fence row.  How does that work? The ten foot right of access is for a situation where one neighbor hasn’t shared in the construction of the line fence.   If a landowner chooses to build a line fence and the adjoining neighbor doesn’t share in the construction of the fence.  Ohio Revised Code Section 971.08 allows the landowner to enter the neighbor’s property for up to ten feet for the length of the fence to build and maintain the fence.  A landowner who stays within that ten feet strip cannot be held guilty for trespassing, but can be liable for any damages caused on the neighbor’s property, including damages to crops.

A neighbor is spraying herbicides on the fence row where an adjoining neighbor is raising organic livestock.  Is there anything the livestock operator can do? There could be a spray drift issue if the herbicides are coming over onto the organic producer’s property.  The most common legal action for dealing with spray drift is negligence, and another legal theory is trespass.  If the drift causes harm, there would be a legal claim under either of those theories and the sprayer could be liable for harm caused by the drift.  Before moving right to a lawsuit, however, a letter from an attorney that explains the potential liability for the drift could be helpful.  Losing the organic certification would be costly, and an attorney would likely point that out.  Those types of letters don’t take a lot of time and wouldn’t be as costly as filing a lawsuit.  Additionally, the sprayer’s insurance policy might address negligence for spray drift and could provide a mechanism for compensation to the livestock producer.

We are in the process of buying a farm property to raise horses and relocate a small craft brewery to the location and grow hops and barley for the brewery. Can you provide information to help navigate the legal issues in doing this? Let’s start with two separate issues—the liquor licensing issue and the zoning issue.  You may already know that Ohio has a relatively new licensing law that eases the liquor license process for small brewers—the A-1c license, explained at https://www.com.ohio.gov/liqr/permitclasses.aspx.  That would allow you to brew and sell onsite if you meet the license requirements.

The zoning question is not as straightforward and instead is an “it depends” answer.  Ohio zoning law does specifically exempt wineries from local zoning regulation, if the winery is growing grapes.  There is not a similar specific exemption for breweries, though.   In some situations, the agricultural exemption from zoning authority applies and prevents the township from prohibiting an agricultural use if it meets the definition of “agriculture.”  Some of the activities you describe, growing hops and grains and raising horses, do fit within that definition.  Processing and marketing activities, like making and selling beer on-site, only fit within that definition if they are “secondary to” the growing/production activities.  Showing that the brewery would be a “secondary” use to the primary production activities could be difficult, and there aren’t clear standards on how to prove which is primary and which is secondary.  Some townships have examined amount of the property dedicated to the different uses, some have examined financial returns of the different uses, some have looked at amount of time… it’s a bit gray and open to interpretation. 

The other way to be exempt from zoning regulations would be to prove that the brewery is “agritourism.”  This requires first showing that the activity is a cultural, recreational, entertainment or historic activity that is “agriculturally related” to the property and that the property qualifies as a “working farm” that is engaged in commercial agricultural production.  Townships vary on how closely they examine these different components, but it seems that many are becoming more  strict about what is and is not “agriculturally related” to the property.  If none of the exemptions apply, whether you could engage in the land use would depend on your district zoning provisions.  You’d want the zoning district to allow a brewery activity as a permitted use in the zoning district, or to be able to seek a “conditional use” permit for it.

If someone has a hornet’s nest in the yard in a neighborhood with a sidewalk, is there concern if the hornets were to attack someone walking by? This is one of those “maybe” answers.  We don’t have clear legal guidance or court cases on liability for stings in Ohio, and my guess is that’s because the cases may settle out in the insurance process.  The hornet nest, though, is probably a natural situation that is less likely to result in liability on the landowner’s part than a manmade condition, especially if the nest is out in the open and easily seen.  The law expects people to bear responsibility to protect themselves from open and obvious natural dangers.  However, the fact that the landowner knows it is there could be problematic given the neighborhood situation, as in “you should have done something about it because you knew people would be walking by,” especially if it’s not easy for passers-by to detect it or if the landowner knows someone in the neighborhood is allergic to bees. To avoid the risk of potential harm or problems, the landowner could consider either putting up a sign warning about the nest or have it removed.  The cost of removal would probably be less than an injury claim or a lawsuit.  The landowner may also want to talk with her insurance agent to see if there would be coverage for an incident—likely not, but it’s worth an ask.  That might bring the landowner some peace of mind if he or she allows it to remain.

If you have an agricultural law question, send it to aglaw@osu.edu and we’ll do our best to provide an answer.  We can’t give you legal advice,of course, but we can explain the laws that apply to the situation.  Also be sure to check for answers in our law bulletins on the Ag Law Library, here on the Farm Office website.

The Ag Law Harvest

Written by Jeffrey K. Lewis, Attorney and Research Specialist, OSU Agricultural & Resource Law Program

Did you know that the Florida Panther is the last subspecies of Mountain Lion found east of the Mississippi River?  The Florida Panther is an endangered species with an estimated population of under 100 panthers.  As bleak as it may seem, things may be looking up for the Florida Panther to make a roaring comeback (which is ironic because Florida Panthers can’t roar). 

Like the Florida Panther, we have prowled agricultural and resource issues from across the country.  Topics include a historic move by Florida to protect its wildlife and natural resources, agritourism getting a boost in Pennsylvania, Colorado’s livestock industry receiving a lifeline, and USDA efforts to expand broadband and water quality initiatives.   

Florida makes conservation history.  Florida has recently enacted a new law known as the Florida Wildlife Corridor Act (the “Act”).  The Act creates a wildlife corridor that will connect Florida’s large national and state parks and create an unbroken area of preserved land that stretches from the Alabama state line all the way down to the Florida Keys.  Specifically, the Act looks to protect about 18 million acres of habitat for Florida’s wildlife.  The Act seeks to prevent wildlife, like the Florida Panther, from being cut off from other members of its species, which is a main driver of extinction.  The Act also aims to protect Florida’s major watersheds and rivers, provide wildlife crossings over and/or under major highways and roads, and establish sustainable practices to help working ranches, farms and, forests that will be vital to ensuring the success and sustainability of the wildlife corridor.  The Act goes into effect July 1 and provides $400 million in initial funding to help purchase land to create the corridor.    

Pennsylvania provides protection for agritourism operators.  Pennsylvania Governor Tom Wolf signed House Bill 101 into law.  Like Ohio’s law, House Bill 101 shields agritourism operators from certain lawsuits that could arise from circumstances beyond their control.  House Bill 101 prevents participants in an agritourism activity from suing the agritourism operator if the operator warns participants of the inherent risks of being on a farm and engaging in an agritourism activity.  An agritourism operator must: (1) have a 3’ x 2’ warning sign posted and notifying participants that an agritourism operator is not liable, except under limited circumstances, for any injury or death of a participant resulting from an agritourism activity; and (2) have a signed written agreement with an agritourism participant acknowledging an agritourism operator’s limited liability or have specific language printed on an admission ticket to an agritourism activity that notifies and warns a participant of an agritourism operator’s limited liability.  House Bill 101, however, does not completely shelter agritourism operators.  An agritourism operator can still be liable for injuries, death, or damages arising from overnight accommodations, weddings, concerts, and food and beverage services.  The enactment of House Bill 101 will help to protect farmers from costly and unnecessary lawsuits and provide additional sustainability to Pennsylvania’s agritourism industry.     

Colorado Supreme Court strikes proposed ballot initiative seeking to hold farmers liable for animal cruelty.  The Colorado Supreme Court issued an opinion removing Initiative 16, also known as the Protect Animals from Unnecessary Suffering and Exploitation Initiative (“PAUSE”) from voter consideration.  Initiative 16 sought to amend Colorado law and remove certain agriculture exemptions from Colorado’s animal cruelty laws.  Initiative 16 intended to set limitations on the slaughter of livestock and to broadly expand the definition of “sexual act with an animal” to include any intrusion or penetration of an animal’s sexual organs, which opponents of the initiative have argued would prohibit artificial insemination and spaying/neutering procedures.  The Colorado Supreme Court found that the initiative violated Colorado’s single-subject requirement for ballot initiatives and therefore, was an illegal ballot initiative.  The court argued that the central theme of the initiative was to incorporate livestock into Colorado’s animal cruelty laws.  However, because the initiative redefined “sexual act with an animal” to include animals other than livestock, the court concluded that the ballot initiative covered two subjects, not one.  The court reasoned that because the initiative addresses two unrelated subjects, voters could be surprised by the consequences of the initiative if it passed, which is why Colorado has single-subject requirement for ballot initiatives. 

USDA announces dates for Conservation Reserve Program (“CRP”) signups.  The USDA set a July 23, 2021, deadline for agricultural producers and landowners to apply for the CRP General signup and will also be accepting applications for CRP Grasslands from July 12 through August 20.  Through the CRP General, producers and landowners establish long-term conservation practices aimed at conserving certain plant species, controlling soil erosion, improving water quality, and enhancing wildlife habitat on cropland.  CRP Grasslands helps landowners and producers protect grasslands including rangeland, pastureland, and certain other lands, while maintaining grazing lands.  To enroll in the CRP, producers and landowners should contact their local USDA Service Center. 

USDA expands CLEAR30 initiative nationwide.  The USDA announced that landowners and agricultural producers currently enrolled in CRP now have an opportunity to sign a 30-year contract through the Clean Lakes, Estuaries, and Rivers Initiative (“CLEAR30”).  CLEAR30 was created by the 2018 Farm Bill to address water quality concerns and was originally only available in the Great Lakes and Chesapeake Bay watersheds.  Now, producers and landowners across the country can sign up for CLEAR30.  Eligible producers must have certain water quality improvement practices under a continuous CRP or under the Conservation Reserve Enhancement Program (“CREP”) and contracts that are set to expire on September 30, 2021.  The USDA hopes that by expanding the initiative, it will enable more producers to take conservation efforts up a level and create lasting impacts.  CLEAR30’s longer contracts help to ensure that conservation benefits will remain in place longer to help in reducing sediment and nutrient runoff and reducing algal blooms.  To sign up, producers and landowners should contact their local USDA Service Center by August 6, 2021.

Three federal agencies enter into agreement to coordinate broadband funding deployment.  The Federal Communications Commission (“FCC”), the USDA, and the National Telecommunications and Information Administration (“NTIA”) entered into an agreement to coordinate the distribution of federal funds for broadband development in rural and underserved areas.  In an announcement released by the USDA, Secretary Vilsack stressed the importance of broadband in rural and underserved communities.  Lessons learned from the COVID-19 Pandemic have made access to broadband a central issue for local, state, federal and Tribal governments.  The goal is to get 100% of Americans connected to high-speed internet.  As part of the signed agreement, the agencies will share information about existing or planned projects and identify areas that need broadband service in order to reach the 100% connectivity goal.  Visit the USDA’s Rural Development Telecom Programs webpage to learn more about the USDA’s efforts to provide broadband service in rural areas.    

Agritourism webinar presents opportunities, trends, and legal issues for agritourism

It wasn’t that long ago that “agritourism” was an unfamiliar term to in the agricultural community.  But agritourism has been on the rise in the U.S. and agritourism income tripled between 2002 and 2017.  Many farmers and ranchers are now familiar with the economic benefits agritourism presents.   Along with the agritourism industry’s continued growth and prospects, however, has been an evolution of laws and legal issues.

Join me with OSU Extension Educators Eric Barrett and Rob Leeds on August 19, 2020 for a free webinar on “The Evolution of Agritourism:  Current Legal Issues and Future Trends,” hosted by the National Agricultural Law Center.  We’ll examine opportunities in agritourism today and the legal challenges agritourism faces from COVID-19 and other anticipated legal issues.   Here’s what we’ll cover:

• What’s new and hot:  agritourism marketing trends and opportunities
• In the courts:  litigation against agritourism operations
• COVID-19:  legal issues for agritourism
• What may come:  anticipated legal challenges for the future
• How to deal with it:  thoughts on  managing agritourism legal risk

Additional information and a registration link for the webinar are available at https://nationalaglawcenter.org/webinars/agritourism2020/.    If you can’t make the live webinar, visit the same page later for a recorded version.

This webinar and the Ohio Ag Law Blog are supported by the USDA’s National Agricultural Library, in partnership with the National Agricultural Law Center.

A “primary” education: Ohio Supreme Court rules on wedding barn dispute

Who knew wedding barns could lead us to the Ohio Supreme Court?  Such is the case for a longstanding controversy over a wedding barn in Medina County.  Litchfield Township opposed the use of the barn for weddings enough to file a lawsuit and appeal its case to Ohio’s highest court.  In a unanimous decision issued today, the court ruled that the weddings could go on.

The case revolves around Forever Blueberry Barn, LLC (“Blueberry Barn”), whose owners built a barn in 2015 in Litchfield Township. The owners’ plans were to host weddings and other social events in the barn.  The owners believed their use qualified the barn as agriculture under Ohio’s broad “agricultural exemption” from zoning authority.  The township thought differently, and claimed that the use was not agriculture and instead violated the township’s residential district zoning regulations.  The township sought an injunction to prevent weddings and events from taking place in the barn.

The Medina County Court of Common Pleas issued the injunction against Blueberry Barn, agreeing that the barn did not qualify for the agricultural exemption.   But the court later withdrew the injunction upon receiving evidence that Blueberry Barn had planted grape vines on the property.  Doing so constituted “viticulture” and fit the land use within the definition of “agriculture” for purposes of the agricultural exemption, the court determined.

On appeal, however, the Ninth District Court of Appeals concluded that the trial court should have examined whether the barn itself was being “used primarily for the purpose of vinting and selling wine.”  Ohio’s agricultural exemption prevents townships from using zoning authority to prohibit the use of land for “agriculture,” which includes viticulture, and also states that townships can’t prohibit the use of buildings or structures “used primarily for vinting and selling wine and that are located on land any part of which is used for viticulture.…”  The appellate court said that a determination must be made at the trial level whether the wedding barn structure was “used primarily” for wine vinting and sales.

At its second trial court hearing, Blueberry Barn brought forth evidence that it produced and stored wine in the barn along with storing winemaking equipment.  Blueberry Barn also explained to the court that persons could only rent the wedding barn if they purchased wine from Blueberry Barn.  Based on this evidence, the trial court concluded that the primary use of the barn was for vinting and selling wine.  On a second appeal by the township, the Ninth District Court of Appeals agreed with the trial court’s judgment.  The township appealed yet again, this time to Ohio’s Supreme Court.

The issue before the Court focused on one word in the agricultural exemption:  primarily.  In order for the agricultural exemption to apply, the wedding barn must be used primarily for vinting and selling wine.  The agricultural exemption does not define the word primarily, so the Court looked to the ordinary dictionary meaning of the word “primary,” which is “of first rank, importance, or value.”  The Court reminded that whether a use is primary is a question of fact to be determined by the trial court.

The township argued that the trial court’s conclusion that vinting and selling wine was the primary use of the barn was incorrect, because only 4% of the barn’s physical space involved vinting and selling wine.  The Supreme Court disagreed with such a conclusion, and clarified that “primary” does not mean “majority.” The Court stated that the amount of space or time devoted to vinting and selling wine would not determine whether the use is “primary.”  It would not be unreasonable for a new winery producing limited quantities of wine in its early stages of production to use its barn space for other purposes, reasoned the Court.

One never knows when the Buckeyes will pop up in a conversation or even a court case, and it happened in this one.  In a teaching moment, the Supreme Court used Ohio Stadium to illustrate its interpretation of the word “primary.” It would be hard to argue that football is not the primary use of Ohio Stadium even if the stadium holds 20 events a year and only 7 of those events are for Buckeye football, the Court explained.  Additionally, the Court pointed to the fact that only those who purchased wine from Blueberry Barn could use the facility for weddings or events as further support for the trial court’s factual determination that wedding rentals contributed to the barn’s primary use of vinting and selling wine.  The Court affirmed the ruling in favor of Blueberry Barn, bringing an end to the six-year wedding barn controversy.

I’ve taught zoning law and Ohio’s agricultural exemption for many years.  One question I’ve received hundreds of times is this:  how do we know which use of a structure is “primary”?  The Court’s decision today sheds light on this seemingly minor but highly relevant question.  The answer is one that helps us interpret not only the “used primarily for vinting and selling wine” language in the agricultural exemption, but also relates to additional provisions that apply to “agritourism” structures.  Several references in the agricultural exemption prohibit zoning regulation over buildings “used primarily” for agritourism.  When next asked what “primary” means, I can now happily refer to the new “primary-use test” created today by the Supreme Court:  primary does not mean majority, but does mean of first rank, importance, or value.  That’s a primary contribution to Ohio’s agricultural zoning law.

Read the Ohio Supreme Court’s decision in Litchfield Twp. Bd. Of Trustees v. Forever Blueberry Barn, L.L.C. here.

Fun in the Fall: Minimizing Liability at Your Agritourism Operation

Written by Evin Bachelor, Law Fellow, Agricultural and Resource Law Program

Whether we’re ready or not, Labor Day traditionally marks a transition from summer to fall.  Pumpkin flavored everything will soon be available at a coffee shop and restaurant near you, and Ohio’s agritourism farms will surely be busy.

Whether you are just getting your agritourism farm up and running, or a seasoned agritourism veteran, it never hurts to take a moment to think about your liability risks.  The OSU Extension Agricultural & Resource Law Program has developed a number of resources, available on our publications webpage, that can help you think about ways to minimize the legal risks to you and your farm.  These resources include:

• Ohio’s Agritourism Law – Ohio law grants liability protection for personal injuries suffered while participating in an agritourism activity.  It also provides for special taxation and zoning of lands where agritourism activities occur.  This law bulletin explains what your farm needs to do to be covered by the immunity, and how much protection it provides.  Click HERE to read the law bulletin.
• Farm Animals and People: Liability Issues for Agritourism – Farm animals can be a valuable attraction for an agritourism operation, but having people and animals interact on the farm creates liability risks.  This factsheet explains a range of animal liability risks and provides a checklist to think about what you can do to reduce the risk of injury to your visitors, as well as reduce the risk of a lawsuit.  Click HERE to read the factsheet.
• Agritourism and Insurance – Even with immunity laws in place, a farmer must carefully consider the farm’s insurance needs and ensure that it has adequate coverage.  This factsheet explains agritourism insurance, why it may be needed, and more.  It also provides a checklist that may help an agritourism farmer make sure that certain important insurance questions are addressed before an accident occurs.  Click HERE to read the factsheet.
• Agritourism Immunity Laws in the United States – Many states, including Ohio, have taken steps to encourage agritourism by providing agritourism farms with some degree of immunity to liability.  We explain Ohio’s law more in depth in our law bulletin titled “Ohio’s Agritourism Law,” but this factsheet compares approaches taken in other states and provides a checklist that helps an agritourism farm think about how much protection it has under these laws.  Click HERE to read the factsheet.
• Agritourism Activities and Zoning – Zoning is a force to be reckoned with in many states, but many states, including Ohio, have taken steps to encourage agritourism through zoning regulations.  This factsheet explains how zoning and agritourism interact across the country, including an explanation of Ohio’s current approach.  Click HERE to read the factsheet.
• Youth Labor on the Farm: Laws Farmers Need to Know – Many Ohio agritourism farms provide employment to youth, who are able to learn about agriculture, business, and customer service through working at the farm.  Those hiring youth under the age of 18 want to make sure that they are following federal and Ohio labor laws.  Our latest law bulletin explains the youth labor laws that are unique to agriculture.  Click HERE to read the factsheet.

Food sales present some special issues that you will want to think about if you wish to sell food at your farm.  Depending upon the foods you sell, you may have to obtain a retail food establishment license for food safety purposes.  The following resources can help you think through the steps you must take to sell food at your agritourism farm:

• Food Sales at Agritourism Operations: Legal Issues – Whether you sell fresh produce, cottage foods or baked goods, or prepare and serve food on-site, there are legal risks and requirements that may come into play.  This factsheet explains some of the legal issues you should consider before selling food at your farm, and provides a checklist of things to consider before you begin selling food.  Click HERE to read the factsheet.
• Selling Foods at the Farm: When Do You Need a License? – This Ohio-specific factsheet explores farmers, including those operating an agritourism farm, need to register or obtain a license in order to sell food at the farm.  Click HERE to read the law bulletin.

Beyond our website, many of our peers at OSU Extension have developed a number of helpful resources for agritourism farms.  OSU Extension’s Agritourism Ready webpage, which you can access at u.osu.edu/agritourismready/, is designed to be a one stop shop for preparing an emergency management plan.  You can also read factsheets on Ohioline related to agritourism ranging from “Creating Signage for Direct Food and Agricultural Sales” to “Grants and Low-Interest Loans for Ohio Small Farms,” and “Maps, Apps and Mobile Media Marketing” to “Selling Eggs in Ohio: Marketing and Regulations.”

As new legal issues arise, we will continue to create resources that help farmers understand and mitigate their risk.  In the meantime, we wish everyone a fun and safe fall at Ohio’s agritourism farms.