“They’re literally forcing people to leave my store and go to some competitor,” said Craig Ray, who owns four tobacco shops in the region.
A handful of Ohio businesses ordered shut down due to the coronavirus pandemic have now had cases heard by the state’s Dispute Resolution Commission, designed to resolve differences when local health departments have diverged on whether those operations are essential in the face of a pandemic.
The process has also revealed how some smaller businesses like CR Butts — otherwise allowed to legally compete in the marketplace, provide employment and send tax revenue to newly-cash-strapped governments — are forced to close, losing customers to large retailers still allowed to sell the same products.
“All the places that are open are big name places: the Walmarts, Krogers, the TrueNorths the Speedways,” Ray said. “This seems like all they shut down are small businesses and small business alone.”
Ray of Piqua, who owns CR Butts tobacco shops in four Ohio counties including Montgomery and Miami counties, filed a dispute with the committee after his Englewood store was shut down by Public Health – Dayton & Montgomery County over Ohio’s stay-at-home order. A companion store in Miami County was not initially closed by the health department there.
CR Butts won a victory of sorts with a Dispute Resolution Commission opinion last week: The Englewood business could remain open if the sale of deemed essential products accounted for a majority of his business, said Sam Randazzo, chair of the state commission named to referee the disputes.
“The opinion here focuses on the food products and non-prescription medications that this store is selling, and finds that with regard to those things, the store is engaged in the functions of an essential business,” Randazzo said. “To the extent that it may be selling incidentally other things, that’s okay. But to the extent that the incidental activity becomes the primary or the substantial portion of the business, then the status as an essential business will be lost with regard to food products and non-prescription medicines.”
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Following the commission’s decision Thursday, Ray had until 4 p.m. Saturday to provide Miami County Public Health evidence that a preponderance of revenue was derived from products deemed essential. He couldn’t. The store was closed.
“For me, it’s either shut down all tobacco sales or not. As long as we follow protocols, they should be fine with it,” he said. “You can drive by any Speedway and see 15 people and they’re not doing social distancing inside the store.”
CR Butts has until 4 p.m. Wednesday to provide Montgomery County with similar documentation for its Englewood location.
Ray said his company is practicing all the health protocols, keeping social distances in check and even taking customers’ orders at curbside. What he can’t demonstrate is that tobacco sales are merely incidental to his business, figuring sales of food and over-the-counter medications amounted to no more than 10% of his weekly revenue.
A CR Butts in Wapakoneta in Auglaize County and another located in Shelby County at Sidney also have an uncertain future due to the commission’s ruling, he said. But it’s not worth a second-degree misdemeanor offense of up to 90 days in jail and a $750 fine to press matters further, he said.
It’s unclear how many businesses were affected during the wave of closures by the state’s 113 public health departments. Public Health – Dayton & Montgomery County initially investigated 270 work sites, ordering 12 closed, which included CR Butts, other tobacco and vape shops, game and comic stores.
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Ohio Department of Health Director Amy Acton appointed Lydia Mihalik, director of the Ohio Development Services Agency, Sheryl Maxfield, director of the Ohio Department of Commerce and Randazzo, chair of the Public Utilities Commission of Ohio to referee the disputes.
During its first three meetings, the commission has sided with companies six times, with two caveats like CR Butts, and deemed another five businesses not essential.
The state’s first three disputes were lodged by pet groomers at a Niles shop, including Elena Jones, owner of Ultimutt Pet Pawlour, after it was shut down by Trumbull County while Mahoning County allowed other groomers to remain open.
“There are other places that did open back up and that’s where the confusion comes from for a lot of groomers,” Jones said. “From what I’m gathering within the state of Ohio itself, there are still counties that are allowing people to groom.”
Randazzo said the commission’s opinions are now precedents for disputes involving similar business activities and those decisions will generally not have to be reheard.
“Moving forward, when we get a request involving a pet grooming situation again, the stay at home order will be applied consistent with the determinations that we’ve already been made with regard to that case,” Randazzo said. “There will not be a need for that for us to revisit every pet grooming conflict in the state, we believe that we have addressed that and resolved that unless there are substantially different facts or circumstances.”
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Disputes can be brought to the commission by health departments or by businesses affected by the determinations of the health departments, Randazzo said.
One dispute brought by GroundsPRO, a landscaping company in West Chester Twp., worked to resolve differing determinations of health departments in Butler, Clermont, Hamilton and Warren counties. The commission rendered an opinion that the company’s stand-alone mulching services fall within the scope of landscaping services, previously deemed essential by the state.
That decision will now be applied equally across the state, according to the commission’s opinion.
Randazzo said car washes are essential businesses provided there’s no direct employee contact with customers, no human-to-human contact or hand washing and drying of vehicles. One determining factor was car washes support governmental first responders, he said.
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