In the wake of the recent orders banning mass gatherings, prohibiting in-person food and beverage consumption, and closing recreation centers in Ohio, it’s useful to consider the ramifications should an individual or business defy these orders.

Background on the Orders Limiting/Prohibiting Mass Gatherings, Food and Beverage Sales, and Fitness Facilities in Ohio

Amid growing concerns about the transmission of the novel coronavirus, COVID 19, Governor Mike Dewine signed an executive order declaring a state of emergency on March 9, 2020.¹

On Sunday, March 15, 2020 the Director of the Ohio Department of Health, Amy Acton released an order prohibiting the on-site consumption of food and alcohol at Ohio restaurants and bars. The order restricted sales of alcohol, food, and beverages to carry-out and delivery only.²

Then on Tuesday, March 17, Director Amy Acton issued an order banning gatherings of more than 50 people, down from the initial 100-person cap on gatherings released on March 12.³ The order also mandated the immediate closure of all gyms, fitness centers, public recreation centers, bowling alleys, indoor water parks, movie theaters, indoor sports facilities, and trampoline parks across the state.⁴

What are the potential criminal consequences of violating these orders?

With the serious financial consequences of closing or limiting service, some restaurants, bars, and fitness centers might be tempted to defy the closure orders and continue conducting business, in a style reminiscent of speakeasies during prohibition. However, businesses and individuals should be aware of the potential legal consequences of defying these and future public health orders.

R.C. 3701.352 provides that, “No person shall violate any rule the director of health or department of health adopts or any order the director or department of health issues under this chapter to prevent a threat to the public caused by a pandemic, epidemic, or bioterrorism event.”⁵

This includes the orders prohibiting mass gatherings, in-person dining and drinking, and the operation of recreation facilities which Director of the Ohio Department of Health, Amy Acton issued under the authority of R.C. 3701.13 to “make special orders … for preventing the spread of contagious or infectious diseases,” in response to the COVID-19 pandemic.⁶

Further, under R.C. 3701.99, violating such an order constitutes a misdemeanor of the second degree.⁷ Violators could be subjected up to 90 days in jail and/or a $750 fine.⁸

What are the potential civil consequences of violating these orders?

There are also possible civil repercussions to violating an order. Violating an order could put a restaurant or bar’s liquor license or food service operation license in jeopardy. Violating the order prohibiting in-person consumption could potentially constitute other sufficient cause justifying the suspension or revocation of a business’s liquor license.⁹ For example, on March 17, Cincinnati Police boarded up the Queen City Lounge, a bar that allegedly continued to serve food and drink in person despite the March 15 order limiting food and beverage service to delivery and carry out.¹⁰ In the letter to the operators the police advised that that the premises would be barricaded on an emergency basis due to the order violation and that refusal to comply with the order would result in the city seeking to revoke their liquor permits and food service licenses, resulting in a permanent closure. Overall, civil repercussions for violators should encourage compliance with the orders.

Takeaways

While the idea of a renegade bar secretly serving patrons cocktails may sound like a scene out of The Great Gatsby, violators of the Department of Health’s orders could face serious civil and criminal repercussions. More importantly individuals and businesses should comply with these orders to help stem the spread of COVID 19, which is easily transmitted from person to person and can cause serious illness or death.

¹ https://coronavirus.ohio.gov/wps/wcm/connect/gov/ad0d76f6-5afe-49b3-8588-7c594745c5a9/Executive+Order+2020-01D.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=ROOTWORKSPACE.Z18_M1HGGIK0N0JO00QO9DDDDM3000-ad0d76f6-5afe-49b3-8588-7c594745c5a9-n3rsfRX

² https://content.govdelivery.com/attachments/OHOOD/2020/03/15/file_attachments/1401428/Health%20Director%20Order%20Limit%20Food,%20Alcohol%20Sales%20to%20Carry%20Out%20Delivery%20Only.pdf

³ https://coronavirus.ohio.gov/wps/wcm/connect/gov/dd504af3-ae2c-4d2e-b2bd-02c1a3beed89/Director%27s+Order-+Amended+Mass+Gathering+3.17.20+%281%29.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=ROOTWORKSPACE.Z18_M1HGGIK0N0JO00QO9DDDDM3000-dd504af3-ae2c-4d2e-b2bd-02c1a3beed89-n3FI0mY

⁴ https://www.cleveland19.com/2020/03/16/ohio-gov-dewines-latest-order-statewide-closures-include-fitness-centers-public-recreation-centers-movie-theaters/https://www.dispatch.com/news/20200316/coronavirus-gov-mike-dewine-closes-gyms-recreation-centers

⁵ http://codes.ohio.gov/orc/3701.352v1

⁶ https://coronavirus.ohio.gov/wps/wcm/connect/gov/dd504af3-ae2c-4d2e-b2bd-02c1a3beed89/Director%27s+Order-+Amended+Mass+Gathering+3.17.20+%281%29.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=ROOTWORKSPACE.Z18_M1HGGIK0N0JO00QO9DDDDM3000-dd504af3-ae2c-4d2e-b2bd-02c1a3beed89-n3FI0mY

⁷ http://codes.ohio.gov/orc/2929.24

⁸ http://codes.ohio.gov/orc/2929.28v1

⁹ http://codes.ohio.gov/orc/4301.25; See also Broadway Enterprises, Inc. v. Liquor Control Comm., 17 Ohio App.2d 35, 39, 244 N.E.2d 516, 519 (10th Dist.1968) (discussing how violating a public health statute or regulation could “other sufficient cause” authorizing the suspension or revocation of a liquor license under R.C. 4301.25)

¹⁰ https://www.cincinnati.com/story/news/crime/crime-and-courts/2020/03/17/police-westwood-business-boarded-up-violating-covid-19-order/5068190002/