Gerald L. McDonald Archives - Pickrel Schaeffer & Ebeling

Tax-Exempt Real and Personal Property Tax Changes

Pam Thomas — Thu, 29 Jul 2021 19:24:00 +0000

The county auditor maintains a list of all real property exempted from taxation. The Auditor is required to update the list annually based on property transfer data it receives locally and from the State. However, as a result of the recently passed a budget bill starting with the tax year 2022, there is now an affirmative duty placed on owners of tax-exempt real and personal property to notify the county auditor if the property ceases to qualify for an exemption.
A form must be filed with the county auditor on or before the last day of the tax year the property ceases to qualify for an exemption. If the county auditor discovers that an owner failed to file, a charge can be imposed against the property equal to the total amount by which taxes were reduced for any of the five preceding tax years that the Auditor ascertains the property was not entitled to the exemption and was owned by the current owner.
Tax exemption status is not provided based on who owns the property but rather the property’s current use. Owners of a tax-exempt property need to be aware of this new requirement and review whether the use of their property still qualifies for an Ohio real property tax exemption.
For more information regarding tax exemption status, please contact Gerald McDonald at gmcdonald@pselaw.com or 937.223.1130.
Reference: Ohio Revised Code Section 5713.083; Budget Bill (H.B. 110)

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Business Contract Language in the World of COVID-19

Pam Thomas — Thu, 19 Mar 2020 22:57:48 +0000

Written by: David Montgomery

Updated: 3/19/2020

With the continuing spread of Covid-19 and the ever-shifting efforts to contain its spread by Local, State and Federal Government, many of our clients have contacted the firm in relation to contract performance and maintaining their obligations thereunder. Without question we are dealing with extraordinary circumstances not before seen in anyone’s lifetime. The collective hope is that the current disruptions will be short lived in both the risks to exposure and also the duration of economic impact to follow. One thing is certain, however, parties will be looking to their business contracts to either enforce the same or find carve outs for excusable delays or non-performance. This issue is often addressed within a force majeure provision. The language of such a force majeure provision, however, may not address current circumstances, including pandemics, epidemics, imposed governmental regulations, etc. It is also noteworthy that “an Act of God” may not include monetary obligations. In other words, such a provision excuses performance, but not payment obligations.

Having appropriate language within your business contracts and/or your standard terms and conditions may prove critical in the weeks and months to come. This includes language tied to your existing obligations, or the need for supplemental language in future contracts. While we fully recognize our clients are navigating and prioritizing a myriad of issues and business concerns at the moment, we want you to know that we are here to help. If you would like any of our business attorneys to review your existing contract language (either existing contracts or your contract forms for future use), standard terms and conditions, or the applicability of an existing force majeure provision under current circumstances, we would be happy to do so. Please call us at 937-223-1130.

Stay well and be safe.

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Hemp and CBD oil; One step closer to legalization

Pam Thomas — Thu, 18 Jul 2019 18:18:27 +0000

On July 17, 2019, Senate Bill 57, a bill decriminalizing industrial hemp cultivation and permitting possession of CBD oil derived from hemp was passed by the legislature and will be sent to the Governor for signature. Assuming it is signed (which is expected) it will take immediate effect.
Currently, the State Board of Pharmacy has a rule requiring that CBD products made from hemp can only be sold in medical marijuana dispensaries as a controlled substance. However, Senate Bill 57 amends Ohio Revised Code section 3719.41 to provide that “the [State Board of Pharmacy] shall not adopt rules including hemp or a hemp product in a schedule as a controlled substance”. It also allows hemp products, which includes CBD Oil to be commercially sold statewide. As such, it will soon be legal under State law to sell the oil anywhere including such places as vape shops and the local video stores.
Senate Bill 57 changes the definition of marijuana under Ohio Revised Code section 3719.01 by adding: “Marijuana does not include hemp or a hemp product as those terms are defined in section 928.01 of the Revised Code. The Bill creates Chapter 928 of the Revised Code to deal specifically with hemp and defines hemp as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than three-tenths per cent on a dry weight basis.”
Hemp and marijuana are related, but actually two different plants. Hemp contains a very low level of tetrahydrocannabinol, (THC) the active ingredient that produces the “high” in marijuana. The maximum level of THC in hemp is 0.03%. Assuming the CBD oil at issue is made from hemp and contains less no more than 0.03% THC (which is typically the case), it will soon be legally sold statewide
At this time, most local ordinances do not distinguish between hemp and other products from the cannabis plant (such as marijuana). In fact, most define marijuana as “all parts of a plant of the genus cannabis, whether growing or not”. As a result these local ordinances arguably includes hemp since marijuana is all parts of a plant of the genus cannabis, and under state law hemp is “the plant Cannabis sativa L” (a plant of the genus cannabis).
So, will hemp (and thus its extract CBD oil) be illegal in some local communities even if Senate Bill 57 is signed by the Governor? More than likely the answer is “NO”.
For the most part local ordinances tend to mirror the Ohio Revised Code and simply group marijuana in the general category of a controlled substance. Most local codes then define a controlled substance as “a drug, compound, mixture, preparation or substance included in Schedule I, II, III, IV, or V established pursuant to Ohio R.C. 3719.41” Since Senate Bill 57 removes hemp from this schedule in the Revised Code, by default it removes hemp products (such as CBD oil) from the definition of controlled substances under many local code.
Even if this is not the case in a particular community, once Senate Bill 57 takes effect, local prohibitions on hemp/CBD will still likely no longer apply
While a charter city can have local laws that are different from the State laws they cannot be in conflict. (Section 3, Article XVIII of the Ohio Constitution provides that charter municipalities are authorized “to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”).
Whether or not a local law conflicts with a state law is often the subject of litigation and the analysis can get rather complicated. In a simplified nutshell, if the local law regulates people’s conduct, (as opposed to governance of the City) and the State has a similar law that is a “general law” (one that applies State wide) the conflict rules apply. Here the subject marijuana provisions do regulate conduct and the State has a general law regarding it. For purposes of conflict analysis, the controlling test is whether the local ordinance prohibits that which the State statute permits, and vice versa. As the state permits CBD oil it would be an impermissible conflict for a local community to prohibit it.
So, you ask, if this is the case, why can local governments prohibit medical marijuana? The medical marijuana law as enacted by the State contained section 3796.29 which specifically took away the conflict issue by providing: “The legislative authority of a municipal corporation may adopt an ordinance, or a board of township trustees may adopt a resolution, to prohibit, or limit the number of, cultivators, processors, or retail dispensaries licensed under this chapter within the municipal corporation or within the unincorporated territory of the township, respectively.”

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PS&E Welcomes Gabrielle R. Neal!

Pam Thomas — Wed, 17 Jul 2019 13:56:59 +0000

PS&E is proud to announce that Gabrielle R. Neal (Gaby) has recently joined our firm as an Associate. Gaby will be on our Business Law and Real Estate team where she will concentrate her practice on real estate, business, and municipal law.
As an attorney, Gaby has exceptional client communication and negotiating skills. She represents owners, investors and entrepreneurs in all aspects of business and commercial law. She understands the need for urgency and attention to detail when it comes to client matters. Gaby excels at contract drafting, review and negotiations; curing title issues; and assisting clients with real estate transactions.
Gaby graduated from the University of Dayton in 2014. While in law school she was a staff writer and editor of the Dayton Law Review. Pickrel, Schaeffer & Ebeling Co., LPA, established in 1915, has been serving clients for over 100 years, would like to welcome and congratulate Gaby. For more information about click here.

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Trademarks and Vulgarity. Good Golly, What in Tarnation is going on?

Pam Thomas — Wed, 26 Jun 2019 15:25:24 +0000

There was a time when the most vulgar thing we would come across in commerce was Yosemite Sam’s rants about that flea bitten varmint Bugs Bunny. Well, times are-a-changing, perhaps even more than you think. On June 24, 2019 the US Supreme Court struck down part of a federal law blocking trademarks bearing “immoral” or “scandalous” images — including vulgarity and sexual imagery. The Court ruled that Section 2a of the Lanham Act (the law regulating trademarks passed by Congress on July 5, 1946 and signed into law by President Harry Truman) violated the Constitution.
In the case of Iancu v. Brunetti, the Court ruled that designer Erik Brunetti can have his proposed trademark for “FUCT” registered with the United States Patent and Trademark Office, (“USPTO”) even though the mark was initially held by the USPTO to be immoral or scandalous given the “context of extreme misogyny, nihilism or violence” in which the mark was presented (I too had to look up those words).
Section 2a of the Lanham Act excludes “immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
According the Court, the problem with section 2a is that it allows the government to use judgement and decide between viewpoints in ruling on a trademark application. The majority pointed out that the USPTO rejected “You can’t spell healthcare without THC” as scandalous to inappropriately glamorize drug abuse, yet it did allow “say no to drugs-reality is the best trip in life”.
The Supreme Court found that because the law “disfavors certain ideas,” it violates the First Amendment. Justice Kagan, the author of the Court opinion wrote, “[V]iewpoint discrimination is poison to a free society,” and the court must “remain firm” on this issue, during “a time when free speech is under attack.”
This week, upon searching the USPTO trademark registration website for the actual well known four letter word that begins with “F”, 98 trademark applications come up. When searching variation such (similar sounding words but spelled with fuq, fuk, etc. there are over 300 pending applications. Most were preliminary rejected by the USPTO under Section 2a. With this new ruling, these marks potentially have new life. As Justice Sotomayor indicated in her opinion concurring in part and dissenting in part, “the Government will have no statutory basis to refuse 9and thus no choice but to begin registering marks containing the most vulgar, profane or obscene words and images imaginable”.
So what does this mean to you? If you are easily offended, prepare yourself. If you want to register a questionable trademark, that was perhaps a bit on the risqué side perhaps now is the time. As noted by Justice Alito, the Courts decision “does not prevent Congress from adopting a more carefully focused statute the precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas”. For many, this ruling may mean very little. But if there is one take away, it is that the attorneys at Pickrel Schaeffer and Ebeling can help you with all your trademark needs. Should you have any questions regarding trademarks contact Gerald McDonald.

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Ohio Hemp and CBD Oil Regulations

Pam Thomas — Wed, 10 Apr 2019 15:33:59 +0000

Senate Bill 57, a bill decriminalizing industrial hemp cultivation and permitting possession of CBD oil derived from hemp was unanimously passed by the Senate on March 28 and moves now to the House for consideration.

Hemp and marijuana are related, but actually two different plants. Hemp contains a very low level of tetrahydrocannabinol, (THC) the active ingredient that produces the “high” in marijuana. The maximum level of THC in hemp is 0.03%

Under the new law, the Ohio Department of Agriculture will issue hemp cultivation and hemp processing licenses allowing hemp to be grown and processed in Ohio.
Previously the State Board of Pharmacy promulgated a rule that the increasingly popular cannabidiol or CBD made from hemp, can only be sold in medical marijuana dispensaries as a controlled substance. However, Senate Bill 57 amends Ohio Revised Code section 3719.41 to provide that “the [State Board of Pharmacy] shall not adopt rules including hemp or a hemp product in a schedule as a controlled substance”. The bill provides that hemp products include “cosmetics, personal care products, dietary supplements or food intended for animal or human consumption, cloth, cordage, fiber, fuel, paint, paper, particleboard, and any other product containing one or more cannabinoids derived from hemp, including cannabidiol”.
As laws change, we’ll keep you up to date. If you have any questions, please contact Gerald McDonald via email at gmcdonald@pselaw.com or call 937-223-1130.

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Liability Insurance – I’m Covered (or am I?)

Pam Thomas — Thu, 14 Mar 2019 17:34:27 +0000

One of the most important provisions in a contract is the liability insurance provision. For the most part, the business owner relies on an insurance agent to advise what coverage is needed for a particular contractual obligation. The business owner then sets forth the insurance requirement in the contract/lease and states that the other side is to provide a “Certificate of Liability Insurance” as evidence of coverage. But is that Certificate of Liability Insurance fully reviewed to confirm that the proper insurance and coverage has been obtained? Often the answer is no and unfortunately it is generally not discovered until such time as the insurance coverage is needed.

When you receive a Certificate of Liability Insurance the first thing that needs to be done is to compare the information on the certificate to the requirements of the contract/lease. If the contract/lease specified a minimum AM-Best rating for the insurance carrier, you should call your insurance agent to assure that the insurance company issuing the certificate meets that requirement. The name of the “Insured” should be the name of the other contracting party. If the names are different check the Description of Operations portion of the Certificate of Liability Insurance for an explanation of the relationship between the insured and contracting party (i.e., a parent-subsidiary relationship).
Always check to see if the liability insurance is “Claims Made” or “Occurrence”. For most situation contracts require the Commercial General Liability to be on an “occurrence” basis. (The “OCCUR” box should be checked off). The “Claims Made” is typically used with professionals, such as architects and engineers.
Obviously, you want to make sure that the minimum coverage limits listed on the Certificate of Liability Insurance meets the requirements of your contract. If the contract required an umbrella liability policy those limits should also be indicated on the Certificate of Liability Insurance.
The effective date and expiration date need to be reviewed to make sure coverage will be in place for the entire term of the contract. For any long-term contract or contract in which the other party requests an extension, prior to granting additional time, you should review the Certificate of Liability Insurance and make sure that renewal certificates are received before the expiration date. Also, check the “Cancellation” portion on the bottom of the certificate to make sure it is consistent with your contractual requirements.
Any policy numbers listed on the Certificate of Liability Insurance should match the number on any provided endorsements. One of the most important endorsements you should get is the “additional insured endorsements” which should list you as an additional insured. Also, if the contract/lease requires a waiver of subrogation, you need a separate endorsement as a designation on a Certificate of Liability Insurance does not confer rights to the holder in lieu of an actual endorsement.
One of the biggest mistakes that business owners make is they see their name listed under “Certificate Holder” on a Certificate of Liability Insurance and therefore think they are covered. If you need help with reviewing Certificates of Liability Insurances, or setting forth basic insurance provisions in your contracts we are here to help. If you have any questions about this article or would like your insurance policy reviewed, please contact Gerald McDonald at gmcdonald@pselaw.com or call 937-223-1130.

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