Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19

On September 4, 2020, the Centers for Disease Control and Prevention published an Order in the Federal Register in an effort to prevent the further spread of COVID-19 by placing a temporary halt to certain residential evictions (the “Order”). Under the Order, effective through December 31, 2020, a landlord, owner of a residential property, or other person with a legal right to pursue eviction or possessory action, shall not evict any covered person under the Order from any residential property. However, the Order does not relieve any individual of any obligation to pay rent, make a housing payment, or comply with any other obligation that the individual may have under a tenancy, lease, or similar contract. Nothing in the Order precludes the charging or collecting of fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis, under the terms of any applicable contract.

In order to be a “Covered Person” as defined in the Order, every tenant on a residential lease must provide their landlord a declaration under penalty of perjury indicating that:

(1) The individual has used best efforts to obtain all available government assistance for rent or housing
(2) The individual either (i) expects to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return), (ii) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
(3) the individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses;
(4) the individual is using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other non-discretionary expenses; and
(5) eviction would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting—because the individual has no other available housing options.

The Order does not preclude evictions based on a tenant: (1) engaging in criminal activity while on the premises; (2) threatening the health or safety of other residents; (3) damaging or posing an immediate and significant risk of damage to property; (4) violating any applicable building code, health ordinance, or similar regulation relating to health and safety; or (5) violating any other contractual obligation, other than the timely payment of rent or similar housing-related payment (including non-payment or late payment of fees, penalties, or interest).

Under 18 U.S.C. 3559, 3571; 42 U.S.C. 271; and 42 CFR 70.18, a person violating the Order may be subject to a fine of no more than $100,000 if the violation does not result in a death or one year in jail, or both, or a fine of no more than $250,000 if the violation results in a death or one year in jail, or both, or as otherwise provided by law. An organization violating the Order may be subject to a fine of no more than $200,000 per event if the violation does not result in a death or $500,000 per event if the violation results in a death or as otherwise provided by law. The U.S. Department of Justice may initiate court proceedings as appropriate seeking imposition of these criminal penalties.

Little guidance has been issued regarding the Order and it remains unclear how Courts will interpret and administer the Order.

If you would like further clarification or have any questions regarding how this Order may affect you, we encourage you to reach out to your contact at Mansour Gavin or one of the firm’s real estate attorneys to discuss.

On September 14, 2020, Governor Mike DeWine signed House Bill 606, otherwise known as the “Good Samaritan Expansion Bill,” into law to protect people and businesses from tort liability lawsuits stemming from virus transmissions. This law retroactively applies from March 9, 2020, in accordance with Executive Order 2020-01D, and through September 30, 2021.

Across the nation, a rising tide of tort lawsuits have flooded courts, entangling business in litigation surrounding coronavirus transmission. House Bill 606 prevents this practice. The Ohio General Assembly sought to provide certainty to businesses that are re-opening. The legislature recognizes that COVID-19 is a fluid disease and the “best practices” have shifted as more knowledge of the virus is obtained. The purpose of House Bill 606 is to prevent lawsuits against people and businesses for coronavirus transmission. Expressly, House Bill 606 protects persons and business, absent reckless or intentional conduct, from lawsuits seeking damages as a result of transmission of COVID-19.

Lastly, the reach of the “Good Samaritan Expansion Bill” is not solely isolated to re-opening business, but also protects health care professionals from disciplinary conduct for their actions, absent gross negligence, as a result of treating the coronavirus. In short, the “Good Samaritan Expansion Bill” seeks to provides solace, certainty, and stability to reopening businesses from tort liability from COVID–19 transmission.

If you would like further clarification or have any questions regarding House Bill 606, please contact one of Mansour Gavin’s Civil Litigation attorneys.

Brendon Friesen, Mansour Gavin LPA shareholder and Business and Corporate Services Group chair, recently secured two major victories for his clients, Ancient Roots of Wilmington, Ohio and Cielo Processing of Euclid, Ohio.

In January 2019, the Medical Marijuana Control Program (“MMCP”) of the Ohio Department of Commerce (the “Department”) denied both companies provisional licenses to process medical marijuana despite scoring high enough to qualify. Following the administrative appeals, the Department agreed with the legal arguments of Mansour Gavin and awarded both companies licenses. The licenses constitute two of just a handful of the coveted Ohio medical marijuana licenses won on appeal. The processor licenses will ultimately permit both companies to produce and sell products such as vape cartridges, edibles, tinctures, and other cannabis extract products approved by the MMCP.

Mansour Gavin represents Ancient Roots, Cielo Processing, and other companies in the legal cannabis markets of Ohio, the U.S. and abroad. If you have any questions on how we can assist your legal cannabis business, please contact Brendon Friesen or one of our other Business and Corporate Services attorneys.

By: Kenneth E. Smith

Yesterday, the United States Supreme Court held that Title VII of the Civil Rights Act of 1964 – the federal law that prohibits discrimination in employment on the basis of sex, race, color, national origin, and religion – also applies to discrimination against gay and transgender persons. The ruling is one of the most impactful for employee rights since the enactment of Title VII.

The case, Bostock v. Clayton County, Georgia, examined whether discrimination against gay and transgender persons was inherently based on “sex,” thus triggering Title VII’s protections for sex-based discrimination. In a 6-3 decision, Justice Neil Gorsuch wrote that “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex…[s]ex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The Supreme Court’s ruling addresses a circuit split over whether discrimination on the basis of sex also includes discrimination on the basis of one’s sexual orientation. The Sixth Circuit – which includes Ohio – had previously held that discrimination against a transgender employee was prohibited under Title VII, while the Eleventh Circuit, for example, had explicitly held that Title VII did not apply to discrimination against gay or transgender workers. Moreover, less than half of the states have laws prohibiting discrimination on account of sexual orientation, gender identity, or gender expression. Now, there is clear federal guidance that such discrimination is, in fact, discrimination based on sex and is thus prohibited under Title VII.

Employers should take note of yesterday’s ruling and ensure their anti-discrimination policies prohibit discrimination on the basis of sexual orientation, gender identity, and gender expression. Anti-discrimination training should include discussion of discrimination against LGBTQ employees and no adverse hiring or employment decisions should be made against a person based upon their sexual orientation or gender status.

If you have any questions on how we can assist your business with anti-discrimination policies or training, please contact one of Mansour Gavin’s Labor and Employment attorneys.

To our valued clients:

The health and safety of Mansour Gavin employees, colleagues, and clients is of paramount importance and we continue to keep a close eye on the COVID-19 virus (Coronavirus). As we monitor and learn more about the spread of Coronavirus in our communities, I want to assure you that Mansour Gavin has an operational preparedness plan to ensure business continuity while working to protect the well-being of our employees and clients.

Our attorneys and staff have resumed business operations in our offices and we are following the guidelines as set forth by Ohio Governor Mike DeWine in his phased approach toward reopening the economy. With a focus on providing our best service to you, we are taking all necessary precautions to ensure best practices are in place to protect the safety of our employees and clients.

We are maintaining social distancing and are requiring masks in all common areas of our office space. We request that clients and visitors to our office comply with these practices as well. Complimentary masks are available to our visitors. We request that our team monitors their temperature on a daily basis and suggest clients and visitors who come to our office do the same. We also have a no touch thermometer at our front desk to ensure the safety of our team and visitors to our office.

Your business and your people are of the utmost importance to us and I want to assure you that we will do our level best to serve you during this most unusual time. We will continue to closely monitor the situation and evaluate the need for additional measures to support our clients, colleagues, and employees.

For additional information about COVID-19, get the latest report from the CDC at https://www.cdc.gov/coronavirus/2019-ncov/index.html.

Anthony J. Coyne
President
Mansour Gavin LPA

Cleveland, Ohio (May 20, 2020) Kenneth R. Callahan has joined Mansour Gavin as of counsel and is a member of the firm’s Civil Litigation and Corporate and Business Services groups. He possesses over 30 years of legal experience as a public defender, a judge, and attorney, specializing in a wide array of legal matters including complex commercial litigation, receivership, guardianship, and white-collar criminal defense. His vast experience and perspective are highly regarded and leveraged as an arbitrator serving as a private judge in the state of Ohio.

Equal to his depth of experience is his commitment to and support of local professional legal associations and community organizations serving as a Board member, leader, and founder to champion their causes. Ken has been recognized in a variety of ways for the many contributions he has made to the legal community and his alma maters.

Ken earned his J.D. from Cleveland-Marshall College of Law and B.A. from John Carroll University.

Mansour Gavin LPA is a 22-attorney law firm founded in 1954 with offices in Cleveland and Independence, Ohio.

 

Small businesses concerned with how the childcare-related paid sick leave and expanded family and medical leave will jeopardize the viability of their business may be able to take advantage of the small business exemption. Small businesses, including religious and nonprofit organizations, with fewer than 50 employees, may be exempt from the paid sick leave and expanded family and medical leave if the leave requirements would jeopardize the viability of a business as an ongoing concern.

Which small businesses qualify for the small business exemption?

1. Businesses with fewer than 50 employees including religious and nonprofit organizations; and
2. An authorized officer of the business has determined that at least one of the three conditions is satisfied:

• The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity; or
• The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
• There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity

3. Leave is requested because the child’s school or place of care is closed, or childcare provider is unavailable due to COVID-19 related reasons; or

4. Leave is requested because employee is unable to work due to:

• Isolation order related to COVID-19;
• Advisement by health care provider to self-quarantine;
• Experiencing COVID-19 symptoms and is seeking a medical diagnosis;
• Caring for an individual subject to isolation order related to COVID-19 or advisement by health care provider to self-quarantine

 What information must be documented by small businesses?

1. Regardless of whether a small business grants or denies a request for paid sick leave or expanded medical leave, small businesses must document the following:

• The name of the employee requesting leave;
• The date(s) for which leave is requested;
• The reason for leave; and
• A statement from the employee that he or she is unable to work because of the reason

2. Small businesses may request that the employee provide the following information that must be documented upon an employee’s request for leave to care for their child whose school or place of care is closed, or childcare is unavailable:

• The name of the child being cared for;
• The name of the school, place of care, or childcare provider that has closed or become unavailable; and
• A statement from the employee that no other suitable person is available to care for the child

The Department of Labor encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety.

We will continue to provide updates on any additional guidance from the DOL. Our attorneys are always available to discuss any questions you may have. Learn more about Mansour Gavin’s Labor and Employment group or contact us today.

Brendon Friesen, Mansour Gavin LPA shareholder and Business and Corporate Services Group chair, recently secured a major victory for his client, Cielo Jardin LLC of Euclid, OH.

In December 2017, the Ohio Medical Marijuana Control Program (MMCP) denied Cielo Jardin one of 24 coveted provisional licenses to legally cultivate medical marijuana in Ohio. Despite Cielo Jardin scoring in the top ten among hundreds of applicants in the highly competitive merit-based application process, the MMCP disqualified the company on what it perceived as a legal technicality. Mr. Friesen represented Cielo Jardin throughout the appeal process, both at the administrative level and in the Cuyahoga County Court of Common Pleas. On February 7, 2020, Judge Hollie L. Gallagher found that the MMCP should have awarded Cielo Jardin the provisional license and ordered the MMCP to reconsider.

On March 31, 2020, the MMCP issued the provisional license to Cielo Jardin. Mr. Friesen is one of just a handful of attorneys to successfully obtain a MMCP provisional license on appeal. Cielo Jardin will work through the build-out process in the coming months and is extremely excited to be part of the MMCP as a Level II cultivator.

As of March 31, 2020, there are twenty operational medical marijuana cultivation facilities in Ohio, none of which are in Cuyahoga County. Since the program’s first sales began in January 2019, Ohioans have purchased over $60 Million in both processed and plant material marijuana products. Mansour Gavin LPA proudly represents Cielo Jardin and other companies in the fast-growing legal cannabis market in Ohio and in other states.

If you have any questions on how we can assist your business, please contact one of our Business and Corporate Services attorneys.

Like all of you, Mansour Gavin LPA, its attorneys and staff are living through unprecedented times. On March 27, 2020 the U.S. federal government signed into law the $2 trillion CARES Act. Beginning today, small businesses can apply for the nearly $350 billion earmarked for loans available through the economic rescue plan. U.S. Small Business Administration (SBA) approved lenders expect a flood of applications for Paycheck Protection Program (PPP) loans, which make up one of the three financial rescue packages available to small businesses. To qualify for a PPP loan, a business must meet the following criteria:

1. Have fewer than 500 employees;
2. Be operational as of February 15, 2020; and
3. Certify that due to the economic uncertainty caused by the COVID-19 crisis, the loan is required to maintain operations, among other stipulations.

A qualifying business is eligible to receive funds up to 2.5 times their average monthly payroll expense from 2019, accounting for up to $100,000 for each individual employee’s salary, with a maximum loan value of $10 million.

PPP loans accrue 1% interest and mature after 2 years. However, the borrower can apply for forgiveness of the loan up to 100% if the funds are used on certain qualifying expenses (e.g. payroll, rent, mortgages), they retain its employees and meet other important criteria. Borrowers may only be able to seek loan forgiveness up to 25% of non-payroll expenses.

The SBA recently made a draft application available online. For more information on PPP loans, the Economic Injury Disaster Loans (EIDL) or other resources available to small businesses, please visit https://www.sba.gov/funding-programs/loans/coronavirus-relief-options. You can always contact an attorney from our business group for guidance.

In response to the numerous challenges Ohio is facing due to the Covid-19 crisis, the Ohio House and Senate passed House Bill 197 on March 25, 2020. While the bill contains numerous relief measures relating to businesses, schools, and state institutions, of particular note in the legal field are the amendments to state law statutes of limitations and court procedures.

HB 197 applies retroactively to March 9, 2020, the date Governor DeWine declared a state of emergency due to Covid-19. The bill tolls any statute of limitations that was or is set to expire between March 9, 2020 and July 30, 2020, which includes the statutes of limitations for civil, criminal, and administrative claims.

Further, the bill automatically tolls any discovery deadlines in any active civil, criminal, or administrative suits or filings. It also tolls the time a plaintiff has to effectuate service of a complaint on a defendant.

The tolling period for each of the above expires on the date the Covid-19 emergency period ends or July 30, 2020, whichever is sooner. HB 197 will take effect on the date Governor DeWine signs the bill, which he has indicated will be on March 27, 2020.