| Section 1. That sections 122.075, 122.71, 122.72, 122.74, | 26 |
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122.75, 122.88, 122.89, 122.90, 125.831, 169.05, 4141.01, | 27 |
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4141.241, 4141.29, 4301.20, 4719.01, 5733.01, 5733.98, 5739.01, | 28 |
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5739.02, 5739.025, 5739.03, 5741.02, 5747.01, 5747.98, 5751.01, | 29 |
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5751.98, and 6301.06 be amended and sections 122.084, 122.721, | 30 |
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122.731, 122.891, 4141.293, 4141.302, 4141.50, 4141.51, 4141.52, | 31 |
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4141.53, 4141.54, 4141.55, 4141.56, 4141.57, 4141.58, 5709.29, | 32 |
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5747.61, 5751.55, 6301.021, 6303.01, and 6303.02 of the Revised | 33 |
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Code be enacted to read as follows: | 34 |
(4) "Ethanol" has the same meaning as in section 5733.46 of | 45 |
the Revised Codemeans fermentation ethyl alcohol derived from | 46 |
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agricultural products, including potatoes, cereal, grains, cheese | 47 |
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whey, and sugar beets; forest products; or other renewable | 48 |
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resources, including residue and waste generated from the | 49 |
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production, processing, and marketing of agricultural products, | 50 |
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forest products, and other renewable resources that meet all of | 51 |
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the specifications in the American society for testing and | 52 |
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materials (ASTM) specification D 4806-88 and is denatured as | 53 |
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specified in Parts 20 and 21 of Title 27 of the Code of Federal | 54 |
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Regulations. | 55 |
| (B) For the purpose of improving the air quality in this | 67 |
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state, the director of development shall establish an alternative | 68 |
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fuel transportation grant program under which the director may | 69 |
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make grants to businesses, nonprofit organizations, public school | 70 |
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systems, or local governments for the purchase and installation of | 71 |
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alternative fuel refueling or distribution facilities and | 72 |
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terminals, for the purchase and use of alternative fuel, and to | 73 |
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pay the costs of educational and promotional materials and | 74 |
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activities intended for prospective alternative fuel consumers, | 75 |
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fuel marketers, and others in order to increase the availability | 76 |
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and use of alternative fuel. | 77 |
| (E) There is hereby created in the state treasury the | 124 |
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alternative fuel transportation grant fund. The fund shall consist | 125 |
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of money transferred to the fund under division (C) of section | 126 |
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125.836 of the Revised Code, money that is appropriated to it by | 127 |
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the general assembly, and money as may be specified by the general | 128 |
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assembly from the advanced energy fund created by section 4928.61 | 129 |
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of the Revised Code. Money in the fund shall be used to make | 130 |
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grants under the alternative fuel transportation grant program and | 131 |
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by the director in the administration of that program. | 132 |
| There is hereby created the small business microloan | 188 |
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revolving loan fund in the state treasury. The fund consists of | 189 |
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money appropriated to the fund, money received in repayment of | 190 |
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microloans made from the fund, and investment earnings on money in | 191 |
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the fund. The director shall use money in the fund to make | 192 |
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microloans to qualified small businesses through the small | 193 |
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business microloan revolving loan program, and to pay reasonable | 194 |
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costs of administering the program. All investment earnings on | 195 |
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money in the fund shall be credited to the fund. | 196 |
| (A) "Financial institution" means any banking corporation, | 199 |
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trust company, insurance company, savings and loan association, | 200 |
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building and loan association, or corporation, partnership, | 201 |
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federal lending agency, foundation, or other institution engaged | 202 |
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in lending or investing funds for industrial or business purposes. | 203 |
| (B) "Project" means any real or personal property connected | 204 |
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with or being a part of an industrial, distribution, commercial, | 205 |
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or research facility to be acquired, constructed, reconstructed, | 206 |
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enlarged, improved, furnished, or equipped, or any combination | 207 |
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thereof, with the aid provided under sections 122.71 to 122.83 of | 208 |
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the Revised Code, for industrial, commercial, distribution, and | 209 |
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research development of the state. | 210 |
| (E)(1) "Minority business enterprise" means an individual who | 219 |
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is a United States citizen and owns and controls a business, or a | 220 |
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partnership, corporation, or joint venture of any kind that is | 221 |
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owned and controlled by United States citizens, which citizen or | 222 |
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citizens are residents of this state and are members of one of the | 223 |
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following economically disadvantaged groups: Blacks or African | 224 |
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Americans, American Indians, Hispanics or Latinos, and Asians. | 225 |
| (2) "Owned and controlled" means that at least fifty-one per | 226 |
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cent of the business, including corporate stock if a corporation, | 227 |
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is owned by persons who belong to one or more of the groups set | 228 |
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forth in division (E)(1) of this section, and that those owners | 229 |
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have control over the management and day-to-day operations of the | 230 |
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business and an interest in the capital, assets, and profits and | 231 |
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losses of the business proportionate to their percentage of | 232 |
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ownership. In order to qualify as a minority business enterprise, | 233 |
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a business shall have been owned and controlled by those persons | 234 |
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at least one year prior to being awarded a contract pursuant to | 235 |
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this section. | 236 |
| (K) "Community development corporation" means a corporation | 252 |
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organized under Chapter 1702. of the Revised Code that consists of | 253 |
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residents of the community and business and civic leaders and that | 254 |
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has as a principal purpose one or more of the following: the | 255 |
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revitalization and development of a low- to moderate-income | 256 |
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neighborhood or community; the creation of jobs for low- to | 257 |
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moderate-income residents; the development of commercial | 258 |
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facilities and services; providing training, technical assistance, | 259 |
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and financial assistance to small businesses; and planning, | 260 |
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developing, or managing low-income housing or other community | 261 |
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development activities. | 262 |
| (B) The board shall consist of ten members. The director of | 270 |
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development or the director's designee shall be a voting member on | 271 |
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the board. Seven members shall be appointed by the governor with | 272 |
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the advice and consent of the senate and selected because of their | 273 |
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knowledge of and experience in industrial, business, and | 274 |
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commercial financing, suretyship, construction, and their | 275 |
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understanding of the problems of minority business enterprises; | 276 |
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one member also shall be a member of the senate and appointed by | 277 |
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the president of the senate, and one member also shall be a member | 278 |
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of the house of representatives and appointed by the speaker of | 279 |
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the house of representatives. With respect to the board, all of | 280 |
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the following apply: | 281 |
| The board consists of ten members. The director of | 333 |
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development or the director's designee is a voting member of the | 334 |
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board. Seven members shall be appointed by the governor with the | 335 |
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advice and consent of the senate, and shall have knowledge of and | 336 |
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experience in industrial, business, and commercial financing, | 337 |
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suretyship, and construction, and an understanding of the problems | 338 |
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of small businesses. One member shall be a member of the senate | 339 |
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appointed by the president of the senate, and one member shall be | 340 |
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a member of the house of representatives appointed by the speaker | 341 |
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of the house of representatives. | 342 |
| In the event a member appointed by the president of the | 376 |
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senate or by the speaker of the house of representatives is | 377 |
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absent, either of the following persons may serve in the member's | 378 |
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absence: the president of the senate or the speaker of the house | 379 |
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of representatives, whoever appointed the absent member, or a | 380 |
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member of the senate or of the house of representatives of the | 381 |
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same political party as the absent member, as designated by the | 382 |
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president of the senate or the speaker of the house of | 383 |
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representatives, whoever appointed the absent member. | 384 |
| Sec. 122.731. (A) The powers and duties provided in section | 388 |
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122.891 of the Revised Code are established in order to promote | 389 |
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the welfare of the people of the state by encouraging the | 390 |
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establishment and expansion of small businesses; to stabilize the | 391 |
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economy; to provide employment; to assist in the development | 392 |
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within the state of industrial, commercial, distribution, and | 393 |
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research activities required for the people of the state, and for | 394 |
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their gainful employment; and otherwise to create or preserve jobs | 395 |
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and employment opportunities and to improve the economic welfare | 396 |
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of the people of the state. It is determined that the | 397 |
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accomplishment of those purposes is essential so that the people | 398 |
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of the state may maintain their present high standards of living | 399 |
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in comparison with the people of other states and so that | 400 |
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opportunities for employment and for favorable markets for the | 401 |
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products of the state's natural resources, agriculture, and | 402 |
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manufacturing will be improved. It further is determined that it | 403 |
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therefore is necessary to establish the program authorized under | 404 |
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section 122.891 of the Revised Code, to establish the small | 405 |
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business development financing advisory board, and to vest it and | 406 |
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the director of development with the powers and duties provided in | 407 |
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that section. | 408 |
| (a) Receive applications for assistance under sections 122.71 | 422 |
to 122.89122.891 of the Revised Code and applications from surety | 423 |
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companies for bond guarantees under section 122.90 of the Revised | 424 |
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Code, and, after processing but subject to division (A)(2) of this | 425 |
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section, forward them to the minority development financing | 426 |
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advisory board or small business development financing advisory | 427 |
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board, as applicable, together with necessary supporting | 428 |
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information; | 429 |
| (2) The director is not required to submit any determination, | 443 |
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data, terms, or any other application materials or information to | 444 |
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the minority development financing advisory board when provision | 445 |
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of the assistance has been recommended to the director by a | 446 |
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regional economic development entity or when an application for a | 447 |
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surety company for bond guarantees under section 122.90 of the | 448 |
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Revised Code has been previously approved by the controlling | 449 |
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board. | 450 |
| (1) Fix the rate of interest and charges to be made upon or | 452 |
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with respect to moneys loaned or guaranteed by the director and | 453 |
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the terms upon which mortgages and lease rentals may be guaranteed | 454 |
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and the rates of charges to be made for them and make provisions | 455 |
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for the operation of the funds established by the director in | 456 |
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accordance with this section and sections 122.80, 122.88, and | 457 |
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122.90 of the Revised Code; | 458 |
| (5) Maintain, protect, repair, improve, and insure any | 471 |
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property that the director has acquired and dispose of it by sale, | 472 |
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exchange, or lease for the consideration and on the terms and in | 473 |
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the manner as the director considers proper, but the director | 474 |
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shall not operate any such property as a business except as the | 475 |
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lessor of it; | 476 |
| (6)(a) When the cost of any contract for the maintenance, | 477 |
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protection, repair, or improvement of any property held by the | 478 |
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director, other than compensation for personal services, involves | 479 |
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an expenditure of more than fifty thousand dollars, the director | 480 |
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shall make a written contract with the lowest responsive and | 481 |
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responsible bidder in accordance with section 9.312 of the Revised | 482 |
|
Code after advertisement for not less than two consecutive weeks | 483 |
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in a newspaper of general circulation in the county where such | 484 |
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contract, or some substantial part of it, is to be performed, and | 485 |
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in such other publications as the director determines, which | 486 |
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notice shall state the general character of the work and the | 487 |
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general character of the materials to be furnished, the place | 488 |
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where plans and specifications therefor may be examined, and the | 489 |
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time and place of receiving bids. | 490 |
| (8) Receive and accept grants, gifts, and contributions of | 512 |
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money, property, labor, and other things of value to be held, | 513 |
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used, and applied only for the purpose for which the grants, | 514 |
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gifts, and contributions are made, from individuals, private and | 515 |
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public corporations, from the United States or any agency thereof, | 516 |
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from the state or any agency thereof, and from any political | 517 |
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subdivision of the state, and may agree to repay any contribution | 518 |
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of money or to return any property contributed or the value | 519 |
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thereof at such times, in amounts, and on terms and conditions, | 520 |
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excluding the payment of interest, as the director determines at | 521 |
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the time the contribution is made, and may evidence the | 522 |
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obligations by notes, bonds, or other written instruments; | 523 |
| (C)(1) All expenses and obligations incurred by the director | 533 |
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in carrying out the director's powers and in exercising the | 534 |
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director's duties under sections 122.71 to 122.90 of the Revised | 535 |
|
Code shall be payable solely from revenues or other receipts or | 536 |
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income of the director, from grants, gifts, and contributions, or | 537 |
|
funds established in accordance with such sections. Such sections | 538 |
|
do not authorize the director to incur indebtedness or to impose | 539 |
|
liability on the state or any political subdivision of the state. | 540 |
| (C) Receive and accept grants, gifts, and contributions of | 556 |
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money, property, labor, and other things of value, to be held, | 557 |
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used, and applied only for the purpose for which the grants, | 558 |
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gifts, and contributions are made, from individuals, private and | 559 |
|
public corporations, the United States or any agency of the United | 560 |
|
States, the state or any agency of the state, and any political | 561 |
|
subdivision of the state. The director may agree to repay any | 562 |
|
contribution of money or to return any property contributed or its | 563 |
|
value at such times, in amounts, and on terms and conditions, | 564 |
|
excluding the payment of interest, as the director determines at | 565 |
|
the time the contribution is made. The director may evidence the | 566 |
|
obligations by written contracts, subject to section 122.76 of the | 567 |
|
Revised Code; provided, that the director shall not thereby incur | 568 |
|
indebtedness of or impose liability upon the state or any | 569 |
|
political subdivision. | 570 |
| (E) Invest money in the funds the director establishes | 574 |
|
pursuant to division (D) of this section that is in excess of | 575 |
|
current needs, in notes, bonds, or other obligations that are | 576 |
|
direct obligations of or are guaranteed by the United States, or | 577 |
|
in certificates of deposit or withdrawable accounts of banks, | 578 |
|
trust companies, or savings and loan associations organized under | 579 |
|
the laws of this state or the United States, and may credit the | 580 |
|
income or sell the investments at the director's discretion; | 581 |
| (G)(1) Maintain, protect, repair, improve, and insure any | 586 |
|
property the director has acquired and dispose of it by sale, | 587 |
|
exchange, or lease for the consideration and on terms and in a | 588 |
|
manner the director considers proper. The director may not operate | 589 |
|
any property as a business except as a lessor of the property. | 590 |
|
When the cost of any contract for the maintenance, protection, | 591 |
|
repair, or improvement of any property of the advisory board | 592 |
|
connected with the minority business development loan program, | 593 |
|
other than compensation for personal services, involves an | 594 |
|
expenditure of more than one thousand dollars, the director shall | 595 |
|
enter into a written contract with the lowest and best bidder | 596 |
|
after advertisement for not less than four consecutive weeks in a | 597 |
|
newspaper of general circulation in the county where the contract, | 598 |
|
or some substantial part of it, is to be performed, and in other | 599 |
|
publications as the director determines. The notice shall state | 600 |
|
the general character of the work and the general character of the | 601 |
|
materials to be furnished, the place where plans and | 602 |
|
specifications for the work and materials may be examined, and the | 603 |
|
time and place of receiving bids. | 604 |
| (3) Each bid for a contract, except as provided in division | 609 |
|
(G)(2) of this section, shall contain the full name of every | 610 |
|
person interested in it and shall be accompanied by a bond or | 611 |
|
certified check on a solvent bank, in the amount of ten per cent | 612 |
|
of the bid, that if the bid is accepted a contract will be entered | 613 |
|
into and the performance of its proposal secured. The director may | 614 |
|
reject any or all bids. A bond with good and sufficient surety, | 615 |
|
approved by the director, shall be required of all contractors in | 616 |
|
an amount equal to at least one hundred per cent of the contract | 617 |
|
price, conditioned upon faithful performance of the contract. | 618 |
| Sec. 122.88. (A) There is hereby created in the state | 625 |
|
treasury the minority and small business bonding fund, consisting | 626 |
|
of moneys deposited or credited to it pursuant to section 169.05 | 627 |
|
of the Revised Code; all grants, gifts, and contributions received | 628 |
|
pursuant to division (B)(9) of section 122.74 of the Revised Code; | 629 |
|
all moneys recovered following defaults; and any other moneys | 630 |
|
obtained by the director of development for the purposes of | 631 |
|
sections 122.87 to 122.90 of the Revised Code. The fund shall be | 632 |
|
administered by the director. Moneys in the fund shall be held in | 633 |
|
trust for the purposes of sections 122.87 to 122.90 of the Revised | 634 |
|
Code. | 635 |
| (B) Any claims against the state arising from defaults shall | 636 |
|
be payable from the minority and small business bonding program | 637 |
|
administrative and loss reserve fund as provided in division (C) | 638 |
|
of this section or from the minority and small business bonding | 639 |
|
fund. Nothing in sections 122.87 to 122.90 of the Revised Code | 640 |
|
grants or pledges to any obligee or other person any state moneys | 641 |
|
other than the moneys in the minority and small business bonding | 642 |
|
program administrative and loss reserve fund or the minority and | 643 |
|
small business bonding fund, or moneys available to the minority | 644 |
| and small business bonding fund upon request of the director in | 645 |
|
accordance with division (B) of section 169.05 of the Revised | 646 |
|
Code. | 647 |
| (C) There is hereby created in the state treasury the | 648 |
|
minority and small business bonding program administrative and | 649 |
|
loss reserve fund, consisting of all premiums charged and | 650 |
collected in accordance with sectionsections 122.89 and 122.891 | 651 |
|
of the Revised Code and any interest income earned from the moneys | 652 |
|
in the minority
and small business bonding fund. All expenses of | 653 |
the director and, the minority development financing advisory | 654 |
|
board, and the small business development financing advisory board | 655 |
|
in carrying out the purposes of sections 122.87 to 122.90 of the | 656 |
|
Revised Code shall be paid from the minority and small business | 657 |
|
bonding program administrative and loss reserve fund. | 658 |
| Any moneys to the credit of the minority and small business | 659 |
|
bonding program administrative and loss reserve fund in excess of | 660 |
|
the amount necessary to fund the appropriation authority for the | 661 |
|
minority and small business bonding program administrative and | 662 |
|
loss reserve fund shall be held as a loss reserve to pay claims | 663 |
|
arising from defaults on surety bonds underwritten in accordance | 664 |
|
with section 122.89 or 122.891 of the Revised Code or guaranteed | 665 |
|
in accordance with section 122.90 of the Revised Code. If the | 666 |
|
balance of funds in the minority and small business bonding | 667 |
|
program administrative and loss reserve fund is insufficient to | 668 |
|
pay a claim against the state arising from default, then such | 669 |
|
claim shall be payable from the minority and small business | 670 |
|
bonding fund. | 671 |
| Sec. 122.89. (A) The director of development may execute | 672 |
|
bonds as surety for minority businesses as principals, on | 673 |
|
contracts with the state, any political subdivision or | 674 |
|
instrumentality thereof, or any person as the obligee. The | 675 |
|
director as surety may exercise all the rights and powers of a | 676 |
|
company authorized by the department of insurance to execute bonds | 677 |
|
as surety but shall not be subject to any requirements of a surety | 678 |
|
company under Title XXXIX of the Revised Code nor to any rules of | 679 |
|
the department of insurance. | 680 |
| (B) The director, with the advice of the minority development | 681 |
|
financing advisory board, shall adopt rules under Chapter 119. of | 682 |
|
the Revised Code establishing procedures for application for | 683 |
|
surety bonds by minority businesses and for review and approval of | 684 |
|
applications. The board shall review each application in | 685 |
|
accordance with the rules and, based on the bond worthiness of | 686 |
|
each applicant, shall refer all qualified applicants to the | 687 |
|
director. Based on the recommendation of the board, the director | 688 |
|
shall determine whether or not the applicant shall receive | 689 |
|
bonding.
The rules shall establish the maximum amount of any bond | 690 |
|
issued at two million dollars. | 691 |
| (1) For the first contract that a minority business or EDGE | 719 |
|
business enterprise enters into with the state or with any | 720 |
|
particular instrumentality of the state, the minority business or | 721 |
|
EDGE business enterprise may bid or enter into a contract valued | 722 |
|
at twenty-five thousand dollars or less without being required to | 723 |
|
provide a bond, but only if the minority business or EDGE business | 724 |
|
enterprise is participating in a qualified contractor assistance | 725 |
|
program or has successfully completed a qualified contractor | 726 |
assistance program after the effective date of this amendment | 727 |
| October 16, 2009; | 728 |
| (2) After the state or any particular instrumentality of the | 729 |
|
state has accepted the first contract as completed and all | 730 |
|
subcontractors and suppliers on the contract have been paid, the | 731 |
|
minority business or EDGE business enterprise may bid or enter | 732 |
|
into a second contract with the state or with that particular | 733 |
|
instrumentality of the state valued at fifty thousand dollars or | 734 |
|
less without being required to provide a bond, but only if the | 735 |
|
minority business or EDGE business enterprise is participating in | 736 |
|
a qualified contractor assistance program or has successfully | 737 |
completed a qualified contractor assistance program after the | 738 |
effective date of this amendmentOctober 16, 2009; | 739 |
| (3) After the state or any particular instrumentality of the | 740 |
|
state has accepted the second contract as completed and all | 741 |
|
subcontractors and suppliers on the contract have been paid, the | 742 |
|
minority business or EDGE business enterprise may bid or enter | 743 |
|
into a third contract with the state or with that particular | 744 |
|
instrumentality of the state valued at one hundred thousand | 745 |
|
dollars or less without being required to provide a bond, but only | 746 |
|
if the minority business or EDGE business enterprise has | 747 |
|
successfully completed a qualified contractor assistance program | 748 |
after the effective date of this amendmentOctober 16, 2009; | 749 |
| (4) After the state or any particular instrumentality of the | 750 |
|
state has accepted the third contract as completed and all | 751 |
|
subcontractors and suppliers on the contract have been paid, the | 752 |
|
minority business or EDGE business enterprise may bid or enter | 753 |
|
into a fourth contract with the state or with that particular | 754 |
|
instrumentality of the state valued at three hundred thousand | 755 |
|
dollars or less without being required to provide a bond, but only | 756 |
|
if the minority business or EDGE business enterprise has | 757 |
|
successfully completed a qualified contractor assistance program | 758 |
after the effective date of this amendmentOctober 16, 2009; | 759 |
| (5) After the state or any instrumentality of the state has | 760 |
|
accepted the fourth contract as completed and all subcontractors | 761 |
|
and suppliers on the contract have been paid, upon a showing that | 762 |
|
with respect to a contract valued at four hundred thousand dollars | 763 |
|
or less with the state or with any particular instrumentality of | 764 |
|
the state, that the minority business or EDGE business enterprise | 765 |
|
either has been denied a bond by two surety companies or that the | 766 |
|
minority business or EDGE business enterprise has applied to two | 767 |
|
surety companies for a bond and, at the expiration of sixty days | 768 |
|
after making the application, has neither received nor been denied | 769 |
|
a bond, the minority business or EDGE business enterprise may | 770 |
|
repeat its participation in the unbonded state contractor program. | 771 |
|
Under no circumstances shall a minority business or EDGE business | 772 |
|
enterprise be permitted to participate in the unbonded state | 773 |
|
contractor program more than twice. | 774 |
| (1) For the first contract that the minority business or EDGE | 780 |
|
business enterprise enters into with any particular political | 781 |
|
subdivision of the state or with any particular instrumentality of | 782 |
|
a political subdivision, the minority business or EDGE business | 783 |
|
enterprise may bid or enter into a contract valued at twenty-five | 784 |
|
thousand dollars or less without being required to provide a bond, | 785 |
|
but only if the minority business or EDGE business enterprise is | 786 |
|
participating in a qualified contractor assistance program or has | 787 |
|
successfully completed a qualified contractor assistance program | 788 |
after the effective date of this amendmentOctober 16, 2009; | 789 |
| (2) After any political subdivision of the state or any | 790 |
|
instrumentality of a political subdivision has accepted the first | 791 |
|
contract as completed and all subcontractors and suppliers on the | 792 |
|
contract have been paid, the minority business or EDGE business | 793 |
|
enterprise may bid or enter into a second contract with that | 794 |
|
particular political subdivision of the state or with that | 795 |
|
particular instrumentality of a political subdivision valued at | 796 |
|
fifty thousand dollars or less without being required to provide a | 797 |
|
bond, but only if the minority business or EDGE business | 798 |
|
enterprise is participating in a qualified contractor assistance | 799 |
|
program or has successfully completed a qualified contractor | 800 |
assistance program after the effective date of this amendment | 801 |
| October 16, 2009; | 802 |
| (3) After any political subdivision of the state or any | 803 |
|
instrumentality of a political subdivision has accepted the second | 804 |
|
contract as completed and all subcontractors and suppliers on the | 805 |
|
contract have been paid, the minority business or EDGE business | 806 |
|
enterprise may bid or enter into a third contract with that | 807 |
|
particular political subdivision of the state or with that | 808 |
|
particular instrumentality of a political subdivision valued at | 809 |
|
one hundred thousand dollars or less without being required to | 810 |
|
provide a bond, but only if the minority business or EDGE business | 811 |
|
enterprise has successfully completed a qualified contractor | 812 |
assistance program after the effective date of this amendment | 813 |
| October 16, 2009; | 814 |
| (4) After any political subdivision of the state or any | 815 |
|
instrumentality of a political subdivision has accepted the third | 816 |
|
contract as completed and all subcontractors and suppliers on the | 817 |
|
contract have been paid, the minority business or EDGE business | 818 |
|
enterprise may bid or enter into a fourth contract with that | 819 |
|
particular political subdivision of the state or with that | 820 |
|
particular instrumentality of a political subdivision valued at | 821 |
|
two hundred thousand dollars or less without being required to | 822 |
|
provide a bond, but only if the minority business or EDGE business | 823 |
|
enterprise has successfully completed a qualified contractor | 824 |
assistance program after the effective date of this amendment | 825 |
| October 16, 2009; | 826 |
| (5) After any political subdivision of the state or any | 827 |
|
instrumentality of a political subdivision has accepted the fourth | 828 |
|
contract as completed and all subcontractors and suppliers on the | 829 |
|
contract have been paid, upon a showing that with respect to a | 830 |
|
contract valued at three hundred thousand dollars or less with any | 831 |
|
political subdivision of the state or any instrumentality of a | 832 |
|
political subdivision, that the minority business or EDGE business | 833 |
|
enterprise either has been denied a bond by two surety companies | 834 |
|
or that the minority business or EDGE business enterprise has | 835 |
|
applied to two surety companies for a bond and, at the expiration | 836 |
|
of sixty days after making the application, has neither received | 837 |
|
nor been denied a bond, the minority business or EDGE business | 838 |
|
enterprise may repeat its participation in the unbonded political | 839 |
|
subdivision contractor program. Under no circumstances shall a | 840 |
|
minority business or EDGE business enterprise be permitted to | 841 |
|
participate in the unbonded political subdivision contractor | 842 |
|
program more than twice. | 843 |
| (I) Notwithstanding any provision of the Revised Code to the | 844 |
|
contrary, if a minority business or EDGE business enterprise has | 845 |
|
entered into two or more contracts with the state or with any | 846 |
|
instrumentality of the state, the minority business or EDGE | 847 |
|
business enterprise may bid or enter into a contract with a | 848 |
|
political subdivision of the state or with any instrumentality of | 849 |
|
a political subdivision valued at the level at which the minority | 850 |
|
business or EDGE business enterprise would qualify if entering | 851 |
|
into an additional contract with the state. | 852 |
| (J) The director of development shall coordinate and oversee | 853 |
|
the unbonded state contractor program described in division (G) of | 854 |
|
this section, the unbonded political subdivision contractor | 855 |
|
program described in division (H) of this section, and the | 856 |
|
approval of a qualified contractor assistance program. The | 857 |
|
director shall prepare an annual report and submit it to the | 858 |
|
governor and the general assembly on or before the first day of | 859 |
|
February that includes the following: information on the | 860 |
|
director's activities for the preceding calendar year regarding | 861 |
|
the unbonded state contractor program, the unbonded political | 862 |
|
subdivision contractor program, and the qualified contractor | 863 |
|
assistance program; a summary and description of the operations | 864 |
|
and activities of these programs; an assessment of the | 865 |
|
achievements of these programs; and a recommendation as to whether | 866 |
|
these programs need to continue. | 867 |
| (B) The director of development may execute bonds as surety | 899 |
|
for small businesses as principals on contracts with the state or | 900 |
|
instrumentality thereof, a political subdivision or | 901 |
|
instrumentality thereof, or any person as the obligee. The | 902 |
|
director as surety may exercise all the rights and powers of a | 903 |
|
company authorized by the department of insurance to execute bonds | 904 |
|
as surety, but shall not be subject to any requirements of a | 905 |
|
surety company under Title XXXIX of the Revised Code or to any | 906 |
|
rules of the department or superintendent of insurance. | 907 |
| (C) The director, with the advice of the small business | 908 |
|
development financing advisory board, shall adopt rules under | 909 |
|
Chapter 119. of the Revised Code establishing procedures whereby | 910 |
|
small businesses shall apply for surety bonds, and for the review | 911 |
|
and approval of applications. The board shall review each | 912 |
|
application in accordance with the rules and, based upon the bond | 913 |
|
worthiness of each applicant, shall refer all qualified applicants | 914 |
|
to the director. Based on the recommendation of the board, the | 915 |
|
director shall determine whether or not the applicant is entitled | 916 |
|
to receive bonding. The rules shall establish the maximum amount | 917 |
|
of any bond issued at two million dollars. | 918 |
| (D) The rules shall require the small business to pay a | 919 |
|
premium in advance for the bond. The premium shall be established | 920 |
|
by the director, with the advice of the board, after the director | 921 |
|
has received advice from the superintendent of insurance regarding | 922 |
|
the standard market rates for premiums for similar bonds. All | 923 |
|
premiums paid by small businesses shall be paid into the minority | 924 |
|
and small business bonding program administrative and loss reserve | 925 |
|
fund. | 926 |
| (1) For the first contract that a small business enters into | 945 |
|
with the state or with any particular instrumentality of the | 946 |
|
state, the small business may bid or enter into a contract valued | 947 |
|
at twenty-five thousand dollars or less without being required to | 948 |
|
provide a bond, but only if the small business is participating in | 949 |
|
a qualified contractor assistance program or has successfully | 950 |
|
completed a qualified contractor assistance program after the | 951 |
|
effective date of this section. | 952 |
| (2) After the state or the particular instrumentality of the | 953 |
|
state has accepted the first contract as completed and all | 954 |
|
subcontractors and suppliers on the contract have been paid, the | 955 |
|
small business may bid or enter into a second contract with the | 956 |
|
state or with that particular instrumentality of the state valued | 957 |
|
at fifty thousand dollars or less without being required to | 958 |
|
provide a bond, but only if the small business is participating in | 959 |
|
a qualified contractor assistance program or has successfully | 960 |
|
completed a qualified contractor assistance program after the | 961 |
|
effective date of this section. | 962 |
| (3) After the state or the particular instrumentality of the | 963 |
|
state has accepted the second contract as completed and all | 964 |
|
subcontractors and suppliers on the contract have been paid, the | 965 |
|
small business may bid or enter into a third contract with the | 966 |
|
state or with that particular instrumentality of the state valued | 967 |
|
at one hundred thousand dollars or less without being required to | 968 |
|
provide a bond, but only if the minority business has successfully | 969 |
|
completed a qualified contractor assistance program after the | 970 |
|
effective date of this section. | 971 |
| (4) After the state or the particular instrumentality of the | 972 |
|
state has accepted the third contract as completed and all | 973 |
|
subcontractors and suppliers on the contract have been paid, the | 974 |
|
small business may bid or enter into a fourth contract with the | 975 |
|
state or with that particular instrumentality of the state valued | 976 |
|
at three hundred thousand dollars or less without being required | 977 |
|
to provide a bond, but only if the small business has successfully | 978 |
|
completed a qualified contractor assistance program after the | 979 |
|
effective date of this section. | 980 |
| (5) After the state or the instrumentality of the state has | 981 |
|
accepted the fourth contract as completed and all subcontractors | 982 |
|
and suppliers on the contract have been paid, upon a showing that | 983 |
|
with respect to a contract valued at four hundred thousand dollars | 984 |
|
or less with the state or with any particular instrumentality of | 985 |
|
the state, that the small business either has been denied a bond | 986 |
|
by two surety companies or that the small business has applied to | 987 |
|
two surety companies for a bond and, at the expiration of sixty | 988 |
|
days after making the application, has neither received nor been | 989 |
|
denied a bond, the small business may repeat its participation in | 990 |
|
the unbonded state contractor program. Under no circumstances | 991 |
|
shall a small business be permitted to participate in the unbonded | 992 |
|
state contractor program more than twice. | 993 |
| (1) For the first contract that the small business enters | 999 |
|
into with any particular political subdivision of the state or | 1000 |
|
with any particular instrumentality of a political subdivision, | 1001 |
|
the small business may bid or enter into a contract valued at | 1002 |
|
twenty-five thousand dollars or less without being required to | 1003 |
|
provide a bond, but only if the small business is participating in | 1004 |
|
a qualified contractor assistance program or has successfully | 1005 |
|
completed a qualified contractor assistance program after the | 1006 |
|
effective date of this section. | 1007 |
| (2) After the political subdivision or the instrumentality of | 1008 |
|
a political subdivision has accepted the first contract as | 1009 |
|
completed and all subcontractors and suppliers on the contract | 1010 |
|
have been paid, the small business may bid or enter into a second | 1011 |
|
contract with that particular political subdivision or with that | 1012 |
|
particular instrumentality of a political subdivision valued at | 1013 |
|
fifty thousand dollars or less without being required to provide a | 1014 |
|
bond, but only if the small business is participating in a | 1015 |
|
qualified contractor assistance program or has successfully | 1016 |
|
completed a qualified contractor assistance program after the | 1017 |
|
effective date of this section. | 1018 |
| (3) After the political subdivision or the instrumentality of | 1019 |
|
a political subdivision has accepted the second contract as | 1020 |
|
completed and all subcontractors and suppliers on the contract | 1021 |
|
have been paid, the small business may bid or enter into a third | 1022 |
|
contract with that particular political subdivision or with that | 1023 |
|
particular instrumentality of a political subdivision valued at | 1024 |
|
one hundred thousand dollars or less without being required to | 1025 |
|
provide a bond, but only if the small business has successfully | 1026 |
|
completed a qualified contractor assistance program after the | 1027 |
|
effective date of this section. | 1028 |
| (4) After the political subdivision or the instrumentality of | 1029 |
|
a political subdivision has accepted the third contract as | 1030 |
|
completed and all subcontractors and suppliers on the contract | 1031 |
|
have been paid, the small business may bid or enter into a fourth | 1032 |
|
contract with that particular political subdivision of the state | 1033 |
|
or with that particular instrumentality of a political subdivision | 1034 |
|
valued at two hundred thousand dollars or less without being | 1035 |
|
required to provide a bond, but only if the small business has | 1036 |
|
successfully completed a qualified contractor assistance program | 1037 |
|
after the effective date of this section. | 1038 |
| (5) After the political subdivision or the instrumentality of | 1039 |
|
a political subdivision has accepted the fourth contract as | 1040 |
|
completed and all subcontractors and suppliers on the contract | 1041 |
|
have been paid, upon a showing that with respect to a contract | 1042 |
|
valued at three hundred thousand dollars or less with any | 1043 |
|
political subdivision or any instrumentality of a political | 1044 |
|
subdivision, that the small business either has been denied a bond | 1045 |
|
by two surety companies or that the small business has applied to | 1046 |
|
two surety companies for a bond and, at the expiration of sixty | 1047 |
|
days after making the application, has neither received nor been | 1048 |
|
denied a bond, the small business may repeat its participation in | 1049 |
|
the unbonded political subdivision contractor program. Under no | 1050 |
|
circumstances shall a small business be permitted to participate | 1051 |
|
in the unbonded political subdivision contractor program more than | 1052 |
|
twice. | 1053 |
| (J) Notwithstanding any provision of the Revised Code to the | 1054 |
|
contrary, if a small business has entered into two or more | 1055 |
|
contracts with the state or with any instrumentality of the state, | 1056 |
|
the small business may bid or enter into a contract with a | 1057 |
|
political subdivision or with any instrumentality of a political | 1058 |
|
subdivision valued at the level at which the small business would | 1059 |
|
qualify if entering into an additional contract with the state. | 1060 |
| (K) The director of development shall coordinate and oversee | 1061 |
|
the unbonded state contractor program described in division (H) of | 1062 |
|
this section, the unbonded political subdivision contractor | 1063 |
|
program described in division (I) of this section, and the | 1064 |
|
approval of a qualified contractor assistance program. The | 1065 |
|
director shall prepare an annual report and submit it to the | 1066 |
|
governor and the general assembly on or before the first day of | 1067 |
|
February that includes the following: information on the | 1068 |
|
director's activities for the preceding calendar year regarding | 1069 |
|
the unbonded state contractor program, the unbonded political | 1070 |
|
subdivision contractor program, and the qualified contractor | 1071 |
|
assistance program; a summary and description of the operations | 1072 |
|
and activities of these programs; an assessment of the | 1073 |
|
achievements of these programs; and a recommendation as to whether | 1074 |
|
these programs need to continue. | 1075 |
| Sec. 122.90. (A) The director of development may guarantee | 1076 |
|
bonds executed by sureties for minority businesses and EDGE | 1077 |
|
business enterprises certified under section 123.152 of the | 1078 |
|
Revised Code as principals on contracts with the state, any | 1079 |
|
political subdivision or instrumentality, or any person as the | 1080 |
|
obligee. The director, as guarantor, may exercise all the rights | 1081 |
|
and powers of a company authorized by the department of insurance | 1082 |
|
to guarantee bonds under Chapter 3929. of the Revised Code but | 1083 |
|
otherwise is not subject to any laws related to a guaranty company | 1084 |
|
under Title XXXIX of the Revised Code nor to any rules of the | 1085 |
|
department of insurance. | 1086 |
| (E) The director of development, with controlling board | 1103 |
|
approval, may approve one application per fiscal year from each | 1104 |
|
surety bond company for bond guarantees in an amount requested to | 1105 |
|
support one fiscal year of that company's activity under this | 1106 |
|
section. A surety bond company that applies for a bond guarantee | 1107 |
|
under this division, whether or not the guarantee is approved, is | 1108 |
|
not restricted from also applying for individual bond guarantees | 1109 |
|
under division (A) of this section. | 1110 |
| (E) "E85 blend fuel" means fuel containing eighty-five per | 1141 |
cent or more ethanol as defined in section 5733.46122.075 of the | 1142 |
|
Revised Code or containing any other percentage of not less than | 1143 |
|
seventy per cent ethanol if the United States department of energy | 1144 |
|
determines, by rule, that the lower percentage is necessary to | 1145 |
|
provide for the requirements of cold start, safety, or vehicle | 1146 |
|
functions, and that meets the American society for testing and | 1147 |
|
materials specification for E85 blend fuel and any other standards | 1148 |
|
that the director of administrative services adopts by rule. | 1149 |
| (F) "Law enforcement officer" means an officer, agent, or | 1150 |
|
employee of a state agency upon whom, by statute, a duty to | 1151 |
|
conserve the peace or to enforce all or certain laws is imposed | 1152 |
|
and the authority to arrest violators is conferred, within the | 1153 |
|
limits of that statutory duty and authority, but does not include | 1154 |
|
such an officer, agent, or employee if that duty and authority is | 1155 |
|
location specific. | 1156 |
| (2) "Motor vehicle" does not include, except for the purposes | 1160 |
|
of division (C) of section 125.832 of the Revised Code, any | 1161 |
|
vehicle described in division (G)(1) of this section that is used | 1162 |
|
by a law enforcement officer and law enforcement agency or any | 1163 |
|
vehicle that is so described and that is equipped with specialized | 1164 |
|
equipment that is not normally found in such a vehicle and that is | 1165 |
|
used to carry out a state agency's specific and specialized duties | 1166 |
|
and responsibilities. | 1167 |
| (I) "State agency" means every organized body, office, board, | 1171 |
|
authority, commission, or agency established by the laws of the | 1172 |
|
state for the exercise of any governmental or quasi-governmental | 1173 |
|
function of state government regardless of the funding source for | 1174 |
|
that entity, other than any state institution of higher education, | 1175 |
|
the office of the governor, lieutenant governor, auditor of state, | 1176 |
|
treasurer of state, secretary of state, or attorney general, the | 1177 |
|
general assembly or any legislative agency, the courts or any | 1178 |
|
judicial agency, or any state retirement system or retirement | 1179 |
|
program established by or referenced in the Revised Code. | 1180 |
| Sec. 169.05. (A) Every holder required to file a report | 1183 |
|
under section 169.03 of the Revised Code shall, at the time of | 1184 |
|
filing, pay to the director of commerce ten per cent of the | 1185 |
|
aggregate amount of unclaimed funds as shown on the report, except | 1186 |
|
for aggregate amounts of fifty dollars or less in which case one | 1187 |
|
hundred per cent shall be paid. The funds may be deposited by the | 1188 |
|
director in the state treasury to the credit of the unclaimed | 1189 |
|
funds trust fund, which is hereby created, or placed with a | 1190 |
|
financial organization. Any interest earned on money in the trust | 1191 |
|
fund shall be credited to the trust fund. The remainder of the | 1192 |
|
aggregate amount of unclaimed funds as shown on the report, plus | 1193 |
|
earnings accrued to date of payment to the director, shall, at the | 1194 |
|
option of the director, be retained by the holder or paid to the | 1195 |
|
director for deposit as agent for the mortgage funds with a | 1196 |
|
financial organization as defined in section 169.01 of the Revised | 1197 |
|
Code, with the funds to be in income-bearing accounts to the | 1198 |
|
credit of the mortgage funds, or the holder may enter into an | 1199 |
|
agreement with the director specifying the obligations of the | 1200 |
|
United States in which funds are to be invested, and agree to pay | 1201 |
|
the interest on the obligations to the state. Holders retaining | 1202 |
|
any funds not in obligations of the United States shall enter into | 1203 |
|
an agreement with the director specifying the classification of | 1204 |
|
income-bearing account in which the funds will be held and pay the | 1205 |
|
state interest on the funds at a rate equal to the prevailing | 1206 |
|
market rate for similar funds. Moneys that the holder is required | 1207 |
|
to pay to the director rather than to retain may be deposited with | 1208 |
|
the treasurer of state, or placed with a financial organization. | 1209 |
| One-half of the funds evidenced by agreements, in | 1213 |
|
income-bearing accounts, or on deposit with the treasurer of state | 1214 |
|
shall be allocated on the records of the director to the mortgage | 1215 |
|
insurance fund created by section 122.561 of the Revised Code. Out | 1216 |
|
of the remaining half, after allocation of sufficient moneys to | 1217 |
|
the minority and small business bonding fund to meet the | 1218 |
|
provisions of division (B) of this section, the remainder shall be | 1219 |
|
allocated on the records of the director to the housing | 1220 |
|
development fund created by division (A) of section 175.11 of the | 1221 |
|
Revised Code. | 1222 |
| (B) The director shall serve as agent for the director of | 1223 |
|
development and as agent for the Ohio housing finance agency in | 1224 |
|
making deposits and withdrawals and maintaining records pertaining | 1225 |
|
to the minority and small business bonding fund created by section | 1226 |
|
122.88 of the Revised Code, the mortgage insurance fund, and the | 1227 |
|
housing development fund created by section 175.11 of the Revised | 1228 |
|
Code. Funds from the mortgage insurance fund are available to the | 1229 |
|
director of development when those funds are to be disbursed to | 1230 |
|
prevent or cure, or upon the occurrence of, a default of a | 1231 |
|
mortgage insured pursuant to section 122.451 of the Revised Code. | 1232 |
|
Funds from the housing development fund are available upon request | 1233 |
|
to the Ohio housing finance agency, in an amount not to exceed the | 1234 |
|
funds allocated on the records of the director, for the purposes | 1235 |
|
of section 175.05 of the Revised Code. Funds from the minority
and | 1236 |
|
small business bonding fund are available to the director of | 1237 |
|
development upon request to pay obligations on bonds the director | 1238 |
|
writes pursuant to section 122.88 of the Revised Code; except | 1239 |
|
that, unless the general assembly authorizes additional amounts, | 1240 |
|
the total maximum amount of moneys that may be allocated to the | 1241 |
|
minority and small business bonding fund under this division is | 1242 |
|
ten million dollars. | 1243 |
| When funds are to be disbursed, the appropriate agency shall | 1244 |
|
call upon the director to transfer the necessary funds to it. The | 1245 |
|
director shall first withdraw the funds paid by the holders and | 1246 |
|
deposited with the treasurer of state or in a financial | 1247 |
|
institution as agent for the funds. Whenever these funds are | 1248 |
|
inadequate to meet the request, the director shall provide for a | 1249 |
|
withdrawal of funds, within a reasonable time and in the amount | 1250 |
|
necessary to meet the request, from financial institutions in | 1251 |
|
which the funds were retained or placed by a holder and from other | 1252 |
|
holders who have retained funds, in an equitable manner as the | 1253 |
|
director prescribes. In the event that the amount to be withdrawn | 1254 |
|
from any one holder is less than five hundred dollars, the amount | 1255 |
|
to be withdrawn is at the director's discretion. The director | 1256 |
|
shall then transfer to the agency the amount of funds requested. | 1257 |
| Funds deposited in the unclaimed funds trust fund are subject | 1258 |
|
to call by the director when necessary to pay claims the director | 1259 |
|
allows under section 169.08 of the Revised Code, in accordance | 1260 |
|
with the director's rules, to defray the necessary costs of making | 1261 |
|
publications this chapter requires and to pay other operating and | 1262 |
|
administrative expenses the department of commerce incurs in the | 1263 |
|
administration and enforcement of this chapter. | 1264 |
| (C) Earnings on the accounts in financial organizations to | 1271 |
|
the credit of the mortgage funds shall, at the option of the | 1272 |
|
financial organization, be credited to the accounts at times and | 1273 |
|
at rates as earnings are paid on other accounts of the same | 1274 |
|
classification held in the financial organization or paid to the | 1275 |
|
director. The director shall be notified annually, and at other | 1276 |
|
times as the director may request, of the amount of the earnings | 1277 |
|
credited to the accounts. Interest on unclaimed funds a holder | 1278 |
|
retains shall be paid to the director or credited as specified in | 1279 |
|
the agreement under which the organization retains the funds. | 1280 |
|
Interest payable to the director under an agreement to invest | 1281 |
|
unclaimed funds and obligations of the United States shall be paid | 1282 |
|
annually by the holder to the director. Any earnings or interest | 1283 |
|
the director receives under this division shall be deposited in | 1284 |
|
and credited to the mortgage funds. | 1285 |
| (A)(1) "Employer" means the state, its instrumentalities, its | 1288 |
|
political subdivisions and their instrumentalities, Indian tribes, | 1289 |
|
and any individual or type of organization including any | 1290 |
|
partnership, limited liability company, association, trust, | 1291 |
|
estate, joint-stock company, insurance company, or corporation, | 1292 |
|
whether domestic or foreign, or the receiver, trustee in | 1293 |
|
bankruptcy, trustee, or the successor thereof, or the legal | 1294 |
|
representative of a deceased person who subsequent to December 31, | 1295 |
|
1971, or in the case of political subdivisions or their | 1296 |
|
instrumentalities, subsequent to December 31, 1973: | 1297 |
| (a) Had in employment at least one individual, or in the case | 1298 |
|
of a nonprofit organization, subsequent to December 31, 1973, had | 1299 |
|
not less than four individuals in employment for some portion of a | 1300 |
|
day in each of twenty different calendar weeks, in either the | 1301 |
|
current or the preceding calendar year whether or not the same | 1302 |
|
individual was in employment in each such day; or | 1303 |
| (c) Had paid, subsequent to December 31, 1977, for employment | 1308 |
|
in domestic service in a local college club, or local chapter of a | 1309 |
|
college fraternity or sorority, cash remuneration of one thousand | 1310 |
|
dollars or more in any calendar quarter in the current calendar | 1311 |
|
year or the preceding calendar year, or had paid subsequent to | 1312 |
|
December 31, 1977, for employment in domestic service in a private | 1313 |
|
home cash remuneration of one thousand dollars in any calendar | 1314 |
|
quarter in the current calendar year or the preceding calendar | 1315 |
|
year: | 1316 |
| (ii) Had at least ten individuals in employment in | 1331 |
|
agricultural labor, not including agricultural workers who are | 1332 |
|
aliens admitted to the United States to perform agricultural labor | 1333 |
|
pursuant to sections 1184(c) and 1101(a)(15)(H) of the | 1334 |
|
"Immigration and Nationality Act," 66 Stat. 163, 189, 8 U.S.C.A. | 1335 |
|
1101(a)(15)(H)(ii)(a), 1184(c), for some portion of a day in each | 1336 |
|
of the twenty different calendar weeks, in either the current or | 1337 |
|
preceding calendar year whether or not the same individual was in | 1338 |
|
employment in each day; or | 1339 |
| (2) Each individual employed to perform or to assist in | 1365 |
|
performing the work of any agent or employee of an employer is | 1366 |
|
employed by such employer for all the purposes of this chapter, | 1367 |
|
whether such individual was hired or paid directly by such | 1368 |
|
employer or by such agent or employee, provided the employer had | 1369 |
|
actual or constructive knowledge of the work. All individuals | 1370 |
|
performing services for an employer of any person in this state | 1371 |
|
who maintains two or more establishments within this state are | 1372 |
|
employed by a single employer for the purposes of this chapter. | 1373 |
| (4) An employer not otherwise subject to this chapter who | 1377 |
|
files with the director of job and family services a written | 1378 |
|
election to become an employer subject to this chapter for not | 1379 |
|
less than two calendar years shall, with the written approval of | 1380 |
|
such election by the director, become an employer subject to this | 1381 |
|
chapter to the same extent as all other employers as of the date | 1382 |
|
stated in such approval, and shall cease to be subject to this | 1383 |
|
chapter as of the first day of January of any calendar year | 1384 |
|
subsequent to such two calendar years only if at least thirty days | 1385 |
|
prior to such first day of January the employer has filed with the | 1386 |
|
director a written notice to that effect. | 1387 |
| (5) Any employer for whom services that do not constitute | 1388 |
|
employment are performed may file with the director a written | 1389 |
|
election that all such services performed by individuals in the | 1390 |
|
employer's employ in one or more distinct establishments or places | 1391 |
|
of business shall be deemed to constitute employment for all the | 1392 |
|
purposes of this chapter, for not less than two calendar years. | 1393 |
|
Upon written approval of the election by the director, such | 1394 |
|
services shall be deemed to constitute employment subject to this | 1395 |
|
chapter from and after the date stated in such approval. Such | 1396 |
|
services shall cease to be employment subject to this chapter as | 1397 |
|
of the first day of January of any calendar year subsequent to | 1398 |
|
such two calendar years only if at least thirty days prior to such | 1399 |
|
first day of January such employer has filed with the director a | 1400 |
|
written notice to that effect. | 1401 |
| (B)(1) "Employment" means service performed by an individual | 1402 |
|
for remuneration under any contract of hire, written or oral, | 1403 |
|
express or implied, including service performed in interstate | 1404 |
|
commerce and service performed by an officer of a corporation, | 1405 |
|
without regard to whether such service is executive, managerial, | 1406 |
|
or manual in nature, and without regard to whether such officer is | 1407 |
|
a stockholder or a member of the board of directors of the | 1408 |
|
corporation, unless it is shown to the satisfaction of the | 1409 |
|
director that such individual has been and will continue to be | 1410 |
|
free from direction or control over the performance of such | 1411 |
|
service, both under a contract of service and in fact. The | 1412 |
|
director shall adopt rules to define "direction or control." | 1413 |
| (a) Service performed after December 31, 1977, by an | 1415 |
|
individual in the employ of the state or any of its | 1416 |
|
instrumentalities, or any political subdivision thereof or any of | 1417 |
|
its instrumentalities or any instrumentality of more than one of | 1418 |
|
the foregoing or any instrumentality of any of the foregoing and | 1419 |
|
one or more other states or political subdivisions and without | 1420 |
|
regard to divisions (A)(1)(a) and (b) of this section, provided | 1421 |
|
that such service is excluded from employment as defined in the | 1422 |
|
"Federal Unemployment Tax Act," 53 Stat. 183, 26 U.S.C.A. 3301, | 1423 |
|
3306(c)(7) and is not excluded under division (B)(3) of this | 1424 |
|
section; or the services of employees covered by voluntary | 1425 |
|
election, as provided under divisions (A)(4) and (5) of this | 1426 |
|
section; | 1427 |
| (b) Service performed after December 31, 1971, by an | 1428 |
|
individual in the employ of a religious, charitable, educational, | 1429 |
|
or other organization which is excluded from the term "employment" | 1430 |
|
as defined in the "Federal Unemployment Tax Act," 84 Stat. 713, 26 | 1431 |
|
U.S.C.A. 3301 to 3311, solely by reason of section 26 U.S.C.A. | 1432 |
|
3306(c)(8) of that act and is not excluded under division (B)(3) | 1433 |
|
of this section; | 1434 |
| (ii) As a traveling or city salesperson, other than as an | 1446 |
|
agent-driver or commission-driver, engaged on a full-time basis in | 1447 |
|
the solicitation on behalf of and in the transmission to the | 1448 |
|
salesperson's employer or principal except for sideline sales | 1449 |
|
activities on behalf of some other person of orders from | 1450 |
|
wholesalers, retailers, contractors, or operators of hotels, | 1451 |
|
restaurants, or other similar establishments for merchandise for | 1452 |
|
resale, or supplies for use in their business operations, provided | 1453 |
|
that for the purposes of division (B)(2)(e)(ii) of this section, | 1454 |
|
the services shall be deemed employment if the contract of service | 1455 |
|
contemplates that substantially all of the services are to be | 1456 |
|
performed personally by the individual and that the individual | 1457 |
|
does not have a substantial investment in facilities used in | 1458 |
|
connection with the performance of the services other than in | 1459 |
|
facilities for transportation, and the services are not in the | 1460 |
|
nature of a single transaction that is not a part of a continuing | 1461 |
|
relationship with the person for whom the services are performed. | 1462 |
| (ii) The service is not localized in any state, but some of | 1466 |
|
the service is performed in this state and either the base of | 1467 |
|
operations, or if there is no base of operations then the place | 1468 |
|
from which such service is directed or controlled, is in this | 1469 |
|
state or the base of operations or place from which such service | 1470 |
|
is directed or controlled is not in any state in which some part | 1471 |
|
of the service is performed but the individual's residence is in | 1472 |
|
this state. | 1473 |
| (g) Service not covered under division (B)(2)(f)(ii) of this | 1474 |
|
section and performed entirely without this state, with respect to | 1475 |
|
no part of which contributions are required and paid under an | 1476 |
|
unemployment compensation law of any other state, the Virgin | 1477 |
|
Islands, Canada, or of the United States, if the individual | 1478 |
|
performing such service is a resident of this state and the | 1479 |
|
director approves the election of the employer for whom such | 1480 |
|
services are performed; or, if the individual is not a resident of | 1481 |
|
this state but the place from which the service is directed or | 1482 |
|
controlled is in this state, the entire services of such | 1483 |
|
individual shall be deemed to be employment subject to this | 1484 |
|
chapter, provided service is deemed to be localized within this | 1485 |
|
state if the service is performed entirely within this state or if | 1486 |
|
the service is performed both within and without this state but | 1487 |
|
the service performed without this state is incidental to the | 1488 |
|
individual's service within the state, for example, is temporary | 1489 |
|
or transitory in nature or consists of isolated transactions; | 1490 |
| (h) Service of an individual who is a citizen of the United | 1491 |
|
States, performed outside the United States except in Canada after | 1492 |
|
December 31, 1971, or the Virgin Islands, after December 31, 1971, | 1493 |
|
and before the first day of January of the year following that in | 1494 |
|
which the United States secretary of labor approves the Virgin | 1495 |
|
Islands law for the first time, in the employ of an American | 1496 |
|
employer, other than service which is "employment" under divisions | 1497 |
|
(B)(2)(f) and (g) of this section or similar provisions of another | 1498 |
|
state's law, if: | 1499 |
| (i) For the purposes of division (B)(2)(h) of this section, | 1514 |
|
the term "American employer" means an employer who is an | 1515 |
|
individual who is a resident of the United States; or a | 1516 |
|
partnership, if two-thirds or more of the partners are residents | 1517 |
|
of the United States; or a trust, if all of the trustees are | 1518 |
|
residents of the United States; or a corporation organized under | 1519 |
|
the laws of the United States or of any state, provided the term | 1520 |
|
"United States" includes the states, the District of Columbia, the | 1521 |
|
Commonwealth of Puerto Rico, and the Virgin Islands. | 1522 |
| (j) Notwithstanding any other provisions of divisions (B)(1) | 1523 |
|
and (2) of this section, service, except for domestic service in a | 1524 |
|
private home not covered under division (A)(1)(c) of this section, | 1525 |
|
with respect to which a tax is required to be paid under any | 1526 |
|
federal law imposing a tax against which credit may be taken for | 1527 |
|
contributions required to be paid into a state unemployment fund, | 1528 |
|
or service, except for domestic service in a private home not | 1529 |
|
covered under division (A)(1)(c) of this section, which, as a | 1530 |
|
condition for full tax credit against the tax imposed by the | 1531 |
|
"Federal Unemployment Tax Act," 84 Stat. 713, 26 U.S.C.A. 3301 to | 1532 |
|
3311, is required to be covered under this chapter. | 1533 |
| (k) Construction services performed by any individual under a | 1534 |
|
construction contract, as defined in section 4141.39 of the | 1535 |
|
Revised Code, if the director determines that the employer for | 1536 |
|
whom services are performed has the right to direct or control the | 1537 |
|
performance of the services and that the individuals who perform | 1538 |
|
the services receive remuneration for the services performed. The | 1539 |
|
director shall presume that the employer for whom services are | 1540 |
|
performed has the right to direct or control the performance of | 1541 |
|
the services if ten or more of the following criteria apply: | 1542 |
| (l) Service performed by an individual in the employ of an | 1588 |
|
Indian tribe as defined by section 4(e) of the "Indian | 1589 |
|
Self-Determination and Education Assistance Act," 88 Stat. 2204 | 1590 |
|
(1975), 25 U.S.C.A. 450b(e), including any subdivision, | 1591 |
|
subsidiary, or business enterprise wholly owned by an Indian tribe | 1592 |
|
provided that the service is excluded from employment as defined | 1593 |
in the "Federal Unemployment Tax Act," 53 Stat. 183, (1939), 26 | 1594 |
|
U.S.C.A. 3301 and 3306(c)(7) and is not excluded under division | 1595 |
|
(B)(3) of this section. | 1596 |
| (ii) By an individual who is enrolled at a nonprofit or | 1633 |
|
public educational institution which normally maintains a regular | 1634 |
|
faculty and curriculum and normally has a regularly organized body | 1635 |
|
of students in attendance at the place where its educational | 1636 |
|
activities are carried on as a student in a full-time program, | 1637 |
|
taken for credit at the institution, which combines academic | 1638 |
|
instruction with work experience, if the service is an integral | 1639 |
|
part of the program, and the institution has so certified to the | 1640 |
|
employer, provided that this subdivision shall not apply to | 1641 |
|
service performed in a program established for or on behalf of an | 1642 |
employer or group of employers;. | 1643 |
| (g) Service performed for one or more principals by an | 1648 |
|
individual who is compensated on a commission basis, who in the | 1649 |
|
performance of the work is master of the individual's own time and | 1650 |
|
efforts, and whose remuneration is wholly dependent on the amount | 1651 |
|
of effort the individual chooses to expend, and which service is | 1652 |
|
not subject to the "Federal Unemployment Tax Act," 53 Stat. 183 | 1653 |
|
(1939), 26 U.S.C.A. 3301 to 3311. Service performed after December | 1654 |
|
31, 1971: | 1655 |
| (iii) In a facility conducted for the purpose of carrying out | 1674 |
|
a program of rehabilitation for individuals whose earning capacity | 1675 |
|
is impaired by age or physical or mental deficiency or injury, or | 1676 |
|
providing remunerative work for individuals who because of their | 1677 |
|
impaired physical or mental capacity cannot be readily absorbed in | 1678 |
|
the competitive labor market, by an individual receiving such | 1679 |
rehabilitation or remunerative work;. | 1680 |
| (j) Service performed by an individual in the employ of any | 1684 |
|
organization exempt from income tax under section 501 of the | 1685 |
|
"Internal Revenue Code of 1954," if the remuneration for such | 1686 |
|
service does not exceed fifty dollars in any calendar quarter, or | 1687 |
|
if such service is in connection with the collection of dues or | 1688 |
|
premiums for a fraternal beneficial society, order, or association | 1689 |
|
and is performed away from the home office or is ritualistic | 1690 |
|
service in connection with any such society, order, or | 1691 |
|
association; | 1692 |
| (k) Casual labor not in the course of an employer's trade or | 1693 |
|
business; incidental service performed by an officer, appraiser, | 1694 |
|
or member of a finance committee of a bank, building and loan | 1695 |
|
association, savings and loan association, or savings association | 1696 |
|
when the remuneration for such incidental service exclusive of the | 1697 |
|
amount paid or allotted for directors' fees does not exceed sixty | 1698 |
|
dollars per calendar quarter is casual labor; | 1699 |
| (l) Service performed in the employ of a voluntary employees' | 1700 |
|
beneficial association providing for the payment of life, | 1701 |
|
sickness, accident, or other benefits to the members of such | 1702 |
|
association or their dependents or their designated beneficiaries, | 1703 |
|
if admission to a membership in such association is limited to | 1704 |
|
individuals who are officers or employees of a municipal or public | 1705 |
|
corporation, of a political subdivision of the state, or of the | 1706 |
|
United States and no part of the net earnings of such association | 1707 |
|
inures, other than through such payments, to the benefit of any | 1708 |
|
private shareholder or individual; | 1709 |
| (n) Service performed in the employ of an instrumentality | 1713 |
|
wholly owned by a foreign government if the service is of a | 1714 |
|
character similar to that performed in foreign countries by | 1715 |
|
employees of the United States or of an instrumentality thereof | 1716 |
|
and if the director finds that the secretary of state of the | 1717 |
|
United States has certified to the secretary of the treasury of | 1718 |
|
the United States that the foreign government, with respect to | 1719 |
|
whose instrumentality exemption is claimed, grants an equivalent | 1720 |
|
exemption with respect to similar service performed in the foreign | 1721 |
|
country by employees of the United States and of instrumentalities | 1722 |
|
thereof; | 1723 |
| (r) Service performed in the employ of the United States or | 1738 |
|
an instrumentality of the United States immune under the | 1739 |
|
Constitution of the United States from the contributions imposed | 1740 |
|
by this chapter, except that to the extent that congress permits | 1741 |
|
states to require any instrumentalities of the United States to | 1742 |
|
make payments into an unemployment fund under a state unemployment | 1743 |
|
compensation act, this chapter shall be applicable to such | 1744 |
|
instrumentalities and to services performed for such | 1745 |
|
instrumentalities in the same manner, to the same extent, and on | 1746 |
|
the same terms as to all other employers, individuals, and | 1747 |
|
services, provided that if this state is not certified for any | 1748 |
|
year by the proper agency of the United States under section 3304 | 1749 |
|
of the "Internal Revenue Code of 1954," the payments required of | 1750 |
|
such instrumentalities with respect to such year shall be refunded | 1751 |
|
by the director from the fund in the same manner and within the | 1752 |
|
same period as is provided in division (E) of section 4141.09 of | 1753 |
|
the Revised Code with respect to contributions erroneously | 1754 |
|
collected; | 1755 |
| (u) Service that is performed by a nonresident alien | 1775 |
|
individual for the period the individual temporarily is present in | 1776 |
|
the United States as a nonimmigrant under division (F), (J), (M), | 1777 |
|
or (Q) of section 101(a)(15) of the "Immigration and Nationality | 1778 |
|
Act," 66 Stat. 163, 8 U.S.C.A. 1101, as amended, that is excluded | 1779 |
|
under section 3306(c)(19) of the "Federal Unemployment Tax Act," | 1780 |
|
53 Stat. 183 (1939), 26 U.S.C.A. 3301 to 3311. | 1781 |
| (v) Notwithstanding any other provisions of division (B)(3) | 1782 |
|
of this section, services that are excluded under divisions | 1783 |
|
(B)(3)(g), (j), (k), and (l) of this section shall not be excluded | 1784 |
|
from employment when performed for a nonprofit organization, as | 1785 |
|
defined in division (X) of this section, or for this state or its | 1786 |
|
instrumentalities, or for a political subdivision or its | 1787 |
|
instrumentalities or for Indian tribes; | 1788 |
| (aa) Service performed after December 31, 1971, for a | 1814 |
|
nonprofit organization, this state or its instrumentalities, a | 1815 |
|
political subdivision or its instrumentalities, or an Indian tribe | 1816 |
|
as part of an unemployment work-relief or work-training program | 1817 |
|
assisted or financed in whole or in part by any federal agency or | 1818 |
|
an agency of a state or political subdivision, thereof, by an | 1819 |
|
individual receiving the work-relief or work-training. | 1820 |
| (4) If the services performed during one half or more of any | 1821 |
|
pay period by an employee for the person employing that employee | 1822 |
|
constitute employment, all the services of such employee for such | 1823 |
|
period shall be deemed to be employment; but if the services | 1824 |
|
performed during more than one half of any such pay period by an | 1825 |
|
employee for the person employing that employee do not constitute | 1826 |
|
employment, then none of the services of such employee for such | 1827 |
|
period shall be deemed to be employment. As used in division | 1828 |
|
(B)(4) of this section, "pay period" means a period, of not more | 1829 |
|
than thirty-one consecutive days, for which payment of | 1830 |
|
remuneration is ordinarily made to the employee by the person | 1831 |
|
employing that employee. Division (B)(4) of this section does not | 1832 |
|
apply to services performed in a pay period by an employee for the | 1833 |
|
person employing that employee, if any of such service is excepted | 1834 |
|
by division (B)(3)(o) of this section. | 1835 |
| (G)(1) "Wages" means remuneration paid to an employee by each | 1849 |
|
of the employee's employers with respect to employment; except | 1850 |
|
that wages shall not include that part of remuneration paid during | 1851 |
|
any calendar year to an individual by an employer or such | 1852 |
|
employer's predecessor in interest in the same business or | 1853 |
|
enterprise, which in any calendar year is in excess of eight | 1854 |
|
thousand two hundred fifty dollars on and after January 1, 1992; | 1855 |
|
eight thousand five hundred dollars on and after January 1, 1993; | 1856 |
|
eight thousand seven hundred fifty dollars on and after January 1, | 1857 |
|
1994; and nine thousand dollars on and after January 1, 1995. | 1858 |
|
Remuneration in excess of such amounts shall be deemed wages | 1859 |
|
subject to contribution to the same extent that such remuneration | 1860 |
|
is defined as wages under the "Federal Unemployment Tax Act," 84 | 1861 |
|
Stat. 714 (1970), 26 U.S.C.A. 3301 to 3311, as amended. The | 1862 |
|
remuneration paid an employee by an employer with respect to | 1863 |
|
employment in another state, upon which contributions were | 1864 |
|
required and paid by such employer under the unemployment | 1865 |
|
compensation act of such other state, shall be included as a part | 1866 |
|
of remuneration in computing the amount specified in this | 1867 |
|
division. | 1868 |
| (2) Notwithstanding division (G)(1) of this section, if, as | 1869 |
|
of the computation date for any calendar year, the director | 1870 |
|
determines that the level of the unemployment compensation fund is | 1871 |
|
sixty per cent or more below the minimum safe level as defined in | 1872 |
|
section 4141.25 of the Revised Code, then, effective the first day | 1873 |
|
of January of the following calendar year, wages subject to this | 1874 |
|
chapter shall not include that part of remuneration paid during | 1875 |
|
any calendar year to an individual by an employer or such | 1876 |
|
employer's predecessor in interest in the same business or | 1877 |
|
enterprise which is in excess of nine thousand dollars. The | 1878 |
|
increase in the dollar amount of wages subject to this chapter | 1879 |
|
under this division shall remain in effect from the date of the | 1880 |
|
director's determination pursuant to division (G)(2) of this | 1881 |
|
section and thereafter notwithstanding the fact that the level in | 1882 |
|
the fund may subsequently become less than sixty per cent below | 1883 |
|
the minimum safe level. | 1884 |
| (H)(1) "Remuneration" means all compensation for personal | 1885 |
|
services, including commissions and bonuses and the cash value of | 1886 |
|
all compensation in any medium other than cash, except that in the | 1887 |
|
case of agricultural or domestic service, "remuneration" includes | 1888 |
|
only cash remuneration. Gratuities customarily received by an | 1889 |
|
individual in the course of the individual's employment from | 1890 |
|
persons other than the individual's employer and which are | 1891 |
|
accounted for by such individual to the individual's employer are | 1892 |
|
taxable wages. | 1893 |
| (1) "Qualifying week" means any calendar week in an | 1941 |
|
individual's base period with respect to which the individual | 1942 |
|
earns or is paid remuneration in employment subject to this | 1943 |
|
chapter. A calendar week with respect to which an individual earns | 1944 |
|
remuneration but for which payment was not made within the base | 1945 |
|
period, when necessary to qualify for benefit rights, may be | 1946 |
|
considered to be a qualifying week. The number of qualifying weeks | 1947 |
|
which may be established in a calendar quarter shall not exceed | 1948 |
|
the number of calendar weeks in the quarter. | 1949 |
| (2) If an individual does not have sufficient qualifying | 1963 |
|
weeks and wages in the base period to qualify for benefit rights, | 1964 |
|
the individual's base period shall be the four most recently | 1965 |
|
completed calendar quarters preceding the first day of the | 1966 |
|
individual's benefit year. Such base period shall be known as the | 1967 |
|
"alternate base period." If information as to weeks and wages for | 1968 |
|
the most recent quarter of the alternate base period is not | 1969 |
|
available to the director from the regular quarterly reports of | 1970 |
|
wage information, which are systematically accessible, the | 1971 |
|
director may, consistent with the provisions of section 4141.28 of | 1972 |
|
the Revised Code, base the determination of eligibility for | 1973 |
|
benefits on the affidavit of the claimant with respect to weeks | 1974 |
|
and wages for that calendar quarter. The claimant shall furnish | 1975 |
|
payroll documentation, where available, in support of the | 1976 |
|
affidavit. The determination based upon the alternate base period | 1977 |
|
as it relates to the claimant's benefit rights, shall be amended | 1978 |
|
when the quarterly report of wage information from the employer is | 1979 |
|
timely received and that information causes a change in the | 1980 |
|
determination. As provided in division (B) of section 4141.28 of | 1981 |
|
the Revised Code, any benefits paid and charged to an employer's | 1982 |
|
account, based upon a claimant's affidavit, shall be adjusted | 1983 |
|
effective as of the beginning of the claimant's benefit year. No | 1984 |
|
calendar quarter in a base period or alternate base period shall | 1985 |
|
be used to establish a subsequent benefit year. | 1986 |
| (R)(1) "Benefit year" with respect to an individual means the | 1995 |
|
fifty-two week period beginning with the first day of that week | 1996 |
|
with respect to which the individual first files a valid | 1997 |
|
application for determination of benefit rights, and thereafter | 1998 |
|
the fifty-two week period beginning with the first day of that | 1999 |
|
week with respect to which the individual next files a valid | 2000 |
|
application for determination of benefit rights after the | 2001 |
|
termination of the individual's last preceding benefit year, | 2002 |
|
except that the application shall not be considered valid unless | 2003 |
|
the individual has had employment in six weeks that is subject to | 2004 |
|
this chapter or the unemployment compensation act of another | 2005 |
|
state, or the United States, and has, since the beginning of the | 2006 |
|
individual's previous benefit year, in the employment earned three | 2007 |
|
times the average weekly wage determined for the previous benefit | 2008 |
|
year. The "benefit year" of a combined wage claim, as described in | 2009 |
|
division (H) of section 4141.43 of the Revised Code, shall be the | 2010 |
|
benefit year prescribed by the law of the state in which the claim | 2011 |
|
is allowed. Any application for determination of benefit rights | 2012 |
|
made in accordance with section 4141.28 of the Revised Code is | 2013 |
|
valid if the individual filing such application is unemployed, has | 2014 |
|
been employed by an employer or employers subject to this chapter | 2015 |
|
in at least twenty qualifying weeks within the individual's base | 2016 |
|
period, and has earned or been paid remuneration at an average | 2017 |
|
weekly wage of not less than twenty-seven and one-half per cent of | 2018 |
|
the statewide average weekly wage for such weeks. For purposes of | 2019 |
|
determining whether an individual has had sufficient employment | 2020 |
|
since the beginning of the individual's previous benefit year to | 2021 |
|
file a valid application, "employment" means the performance of | 2022 |
|
services for which remuneration is payable. | 2023 |
| (2) Effective for benefit years beginning on and after | 2024 |
|
December 26, 2004, any application for determination of benefit | 2025 |
|
rights made in accordance with section 4141.28 of the Revised Code | 2026 |
|
is valid if the individual satisfies the criteria described in | 2027 |
|
division (R)(1) of this section, and if the reason for the | 2028 |
|
individual's separation from employment is not disqualifying | 2029 |
|
pursuant to division (D)(2) of section 4141.29 or section 4141.291 | 2030 |
|
of the Revised Code. A disqualification imposed pursuant to | 2031 |
|
division (D)(2) of section 4141.29 or section 4141.291 of the | 2032 |
|
Revised Code must be removed as provided in those sections as a | 2033 |
|
requirement of establishing a valid application for benefit years | 2034 |
|
beginning on and after December 26, 2004. | 2035 |
| (3) The statewide average weekly wage shall be calculated by | 2036 |
|
the director once a year based on the twelve-month period ending | 2037 |
|
the thirtieth day of June, as set forth in division (B)(3) of | 2038 |
|
section 4141.30 of the Revised Code, rounded down to the nearest | 2039 |
|
dollar. Increases or decreases in the amount of remuneration | 2040 |
|
required to have been earned or paid in order for individuals to | 2041 |
|
have filed valid applications shall become effective on Sunday of | 2042 |
|
the calendar week in which the first day of January occurs that | 2043 |
|
follows the twelve-month period ending the thirtieth day of June | 2044 |
|
upon which the calculation of the statewide average weekly wage | 2045 |
|
was based. | 2046 |
| (4) As used in this division, an individual is "unemployed" | 2047 |
|
if, with respect to the calendar week in which such application is | 2048 |
|
filed, the individual is "partially unemployed" or "totally | 2049 |
|
unemployed" as defined in this section or if, prior to filing the | 2050 |
|
application, the individual was separated from the individual's | 2051 |
|
most recent work for any reason which terminated the individual's | 2052 |
|
employee-employer relationship, or was laid off indefinitely or | 2053 |
|
for a definite period of seven or more days. | 2054 |
| (1) On a farm, in the employ of any person, in connection | 2068 |
|
with cultivating the soil, or in connection with raising or | 2069 |
|
harvesting any agricultural or horticultural commodity, including | 2070 |
|
the raising, shearing, feeding, caring for, training, and | 2071 |
|
management of livestock, bees, poultry, and fur-bearing animals | 2072 |
|
and wildlife; | 2073 |
| (3) In connection with the production or harvesting of any | 2080 |
|
commodity defined as an agricultural commodity in section 15 (g) | 2081 |
|
of the "Agricultural Marketing Act," 46 Stat. 1550 (1931), 12 | 2082 |
|
U.S.C. 1141j, as amended, or in connection with the ginning of | 2083 |
|
cotton, or in connection with the operation or maintenance of | 2084 |
|
ditches, canals, reservoirs, or waterways, not owned or operated | 2085 |
|
for profit, used exclusively for supplying and storing water for | 2086 |
|
farming purposes; | 2087 |
| (4) In the employ of the operator of a farm in handling, | 2088 |
|
planting, drying, packing, packaging, processing, freezing, | 2089 |
|
grading, storing, or delivering to storage or to market or to a | 2090 |
|
carrier for transportation to market, in its unmanufactured state, | 2091 |
|
any agricultural or horticultural commodity, but only if the | 2092 |
|
operator produced more than one half of the commodity with respect | 2093 |
|
to which such service is performed; | 2094 |
| As used in division (V) of this section, "farm" includes | 2108 |
|
stock, dairy, poultry, fruit, fur-bearing animal, and truck farms, | 2109 |
|
plantations, ranches, nurseries, ranges, greenhouses, or other | 2110 |
|
similar structures used primarily for the raising of agricultural | 2111 |
|
or horticultural commodities and orchards. | 2112 |
| (3) For the purposes of this division, any individual who is | 2168 |
|
furnished by a crew leader to perform service in agricultural | 2169 |
|
labor for any other employer or farm operator and who is not | 2170 |
|
treated as in the employment of the crew leader under division | 2171 |
|
(BB)(2) of this section shall be treated as the employee of the | 2172 |
|
other employer or farm operator and not of the crew leader. The | 2173 |
|
other employer or farm operator shall be treated as having paid | 2174 |
|
cash remuneration to the individual in an amount equal to the | 2175 |
|
amount of cash remuneration paid to the individual by the crew | 2176 |
|
leader, either on the crew leader's own behalf or on behalf of the | 2177 |
|
other employer or farm operator, for the service in agricultural | 2178 |
|
labor performed for the other employer or farm operator. | 2179 |
| Sec. 4141.241. (A)(1) Any nonprofit organization described | 2221 |
|
in division (X) of section 4141.01 of the Revised Code, which | 2222 |
|
becomes subject to this chapter on or after January 1, 1972, shall | 2223 |
|
pay contributions under section 4141.25 of the Revised Code, | 2224 |
|
unless it elects, in accordance with this division, to pay to the | 2225 |
|
director of job and family services for deposit in the | 2226 |
|
unemployment compensation fund an amount in lieu of contributions | 2227 |
|
equal to the amount of regular benefits plus one half of extended | 2228 |
|
benefits paid from that fund that is attributable to service in | 2229 |
|
the employ of the nonprofit organization to individuals whose | 2230 |
|
service, during the base period of the claims, was within the | 2231 |
|
effective period of such election. | 2232 |
| (2) Any nonprofit organization which becomes subject to this | 2233 |
|
chapter after January 1, 1972, may elect to become liable for | 2234 |
|
payments in lieu of contributions for a period of not less than | 2235 |
|
the remainder of that calendar year and the next calendar year, | 2236 |
|
beginning with the date on which such subjectivity begins, by | 2237 |
|
filing a written notice of its election with the director not | 2238 |
|
later than thirty days immediately following the date of the | 2239 |
|
determination of such subjectivity. | 2240 |
| (4) Any nonprofit organization which has been paying | 2248 |
|
contributions for a period subsequent to January 1, 1972, may | 2249 |
|
change to a reimbursable basis by filing with the director, not | 2250 |
|
later than thirty days prior to the beginning of any calendar | 2251 |
|
year, a written notice of election to become liable for payments | 2252 |
|
in lieu of contributions. The election shall not be terminable by | 2253 |
|
the organization during that calendar year and the next calendar | 2254 |
|
year. | 2255 |
| (5) The director, in accordance with any rules the director | 2256 |
|
prescribes, shall notify each nonprofit organization of any | 2257 |
|
determination which the director may make of its status as an | 2258 |
|
employer and of the effective date of any election which it makes | 2259 |
|
and of any termination of the election. Any determinations shall | 2260 |
|
be subject to reconsideration, appeal, and review in accordance | 2261 |
|
with section 4141.26 of the Revised Code. | 2262 |
(B) Except as provided in division (I)(J) of section 4141.29 | 2263 |
|
of the Revised Code, benefits based on service with a nonprofit | 2264 |
|
organization granted a reimbursing status under this section shall | 2265 |
|
be payable in the same amount, on the same terms, and subject to | 2266 |
|
the same conditions, as benefits payable on the basis of other | 2267 |
|
service subject to this chapter. Payments in lieu of contributions | 2268 |
|
shall be made in accordance with this division and division (D) of | 2269 |
|
section 4141.24 of the Revised Code. | 2270 |
| (1)(a) At the end of each calendar quarter, or at the end of | 2271 |
|
any other period as determined by the director under division | 2272 |
|
(D)(4) of section 4141.24 of the Revised Code, the director shall | 2273 |
|
bill each nonprofit organization or group of such organizations | 2274 |
|
which has elected to make payments in lieu of contributions for an | 2275 |
|
amount equal to the full amount of regular benefits plus one half | 2276 |
|
of the amount of extended benefits paid during such quarter or | 2277 |
|
other prescribed period which is attributable to service in the | 2278 |
|
employ of such organization. | 2279 |
| (b) In the computation of the amount of benefits to be | 2280 |
|
charged to employers liable for payments in lieu of contributions, | 2281 |
|
all benefits attributable to service described in division | 2282 |
|
(B)(1)(a) of this section shall be computed and charged to such | 2283 |
|
organization as described in division (D) of section 4141.24 of | 2284 |
|
the Revised Code, and, except as provided in division (D)(2) of | 2285 |
|
section 4141.24 of the Revised Code, no portion of the amount may | 2286 |
|
be charged to the mutualized account established by division (B) | 2287 |
|
of section 4141.25 of the Revised Code. | 2288 |
| (c) The director may prescribe regulations under which | 2289 |
|
organizations, which have elected to make payments in lieu of | 2290 |
|
contributions may request permission to make such payments in | 2291 |
|
equal installments throughout the year with an adjustment at the | 2292 |
|
end of the year for any excess or shortage of the amount of such | 2293 |
|
installment payments compared with the total amount of benefits | 2294 |
|
actually charged the organization's account during the year. In | 2295 |
|
making any adjustment, where the total installment payments are | 2296 |
|
less than the actual benefits charged, the organization shall be | 2297 |
|
liable for payment of the unpaid balance in accordance with | 2298 |
|
division (B)(2) of this section. If the total installment payments | 2299 |
|
exceed the actual benefits charged, all or part of the excess may, | 2300 |
|
at the discretion of the director, be refunded or retained in the | 2301 |
|
fund as part of the payments which may be required in the next | 2302 |
|
year. | 2303 |
| (5) Past-due payments of amounts in lieu of contributions | 2318 |
|
shall be subject to the same interest rates and collection | 2319 |
|
procedures that apply to past-due contributions under sections | 2320 |
|
4141.23 and 414.27 of the Revised Code. In case of failure to file | 2321 |
|
a required quarterly report within the time prescribed by the | 2322 |
|
director, the nonprofit organization shall be subject to a | 2323 |
|
forfeiture pursuant to section 4141.20 of the Revised Code for | 2324 |
|
each quarterly report that is not timely filed. | 2325 |
| (C)(1) Any nonprofit organization, or group of such | 2335 |
|
organizations approved under division (D) of this section, that | 2336 |
|
elects to become liable for payments in lieu of contributions | 2337 |
|
shall be required within thirty days after the effective date of | 2338 |
|
its election, to execute and file with the director a surety bond | 2339 |
|
approved by the director or it may elect instead to deposit with | 2340 |
|
the director approved municipal or other bonds, or approved | 2341 |
|
securities, or a combination thereof, or other forms of collateral | 2342 |
|
security approved by the director. | 2343 |
| (2)(a) The amount of the bond or deposit required shall be | 2344 |
|
equal to three per cent of the organization's wages paid for | 2345 |
|
employment as defined in section 4141.01 of the Revised Code that | 2346 |
|
would have been taxable had the organization been a subject | 2347 |
|
employer during the four calendar quarters immediately preceding | 2348 |
|
the effective date of the election, or the amount established by | 2349 |
|
the director within the limitation provided in division (C)(2)(d) | 2350 |
|
of this section, whichever is the less. The effective date of the | 2351 |
|
amount of the bond or other collateral security required after the | 2352 |
|
employer initially is determined by the director to be liable for | 2353 |
|
payments in lieu of contributions shall be the renewal date in the | 2354 |
|
case of a bond or the biennial anniversary of the effective date | 2355 |
|
of election in the case of deposit of securities or other forms of | 2356 |
|
collateral security approved by the director, whichever date shall | 2357 |
|
be most recent and applicable. If the nonprofit organization did | 2358 |
|
not pay wages in each of such four calendar quarters, the amount | 2359 |
|
of the bond or deposit shall be as determined by the director | 2360 |
|
under regulations prescribed for this purpose. | 2361 |
| (b) Any bond or other form of collateral security approved by | 2362 |
|
the director deposited under this division shall be in force for a | 2363 |
|
period of not less than two calendar years and shall be renewed | 2364 |
|
with the approval of the director, at such times as the director | 2365 |
|
may prescribe, but not less frequently than at two-year intervals | 2366 |
|
as long as the organization continues to be liable for payments in | 2367 |
|
lieu of contributions. The director shall require adjustments to | 2368 |
|
be made in a previously filed bond or other form of collateral | 2369 |
|
security as the director considers appropriate. If the bond or | 2370 |
|
other form of collateral security is to be increased, the adjusted | 2371 |
|
bond or collateral security shall be filed by the organization | 2372 |
|
within thirty days of the date that notice of the required | 2373 |
|
adjustment was mailed or otherwise delivered to it. Failure by any | 2374 |
|
organization covered by such bond or collateral security to pay | 2375 |
|
the full amount of payments in lieu of contributions when due, | 2376 |
|
together with any applicable interest provided for in division | 2377 |
|
(B)(5) of this section, shall render the surety liable on the bond | 2378 |
|
or collateral security to the extent of the bond or collateral | 2379 |
|
security, as though the surety was the organization. | 2380 |
| (c) Any securities accepted in lieu of surety bond by the | 2381 |
|
director shall be deposited with the treasurer of state who shall | 2382 |
|
have custody thereof and retain the same in the treasurer of | 2383 |
|
state's possession, or release them, according to conditions | 2384 |
|
prescribed by regulations of the director. Income from the | 2385 |
|
securities, held in custody by the treasurer of state, shall | 2386 |
|
accrue to the benefit of the depositor and shall be distributed to | 2387 |
|
the depositor in the absence of any notification from the director | 2388 |
|
that the depositor is in default on any payment owed to the | 2389 |
|
director. The director may require the sale of any such bonds to | 2390 |
|
the extent necessary to satisfy any unpaid payments in lieu of | 2391 |
|
contributions, together with any applicable interest or | 2392 |
|
forfeitures provided for in division (B)(5) of this section. The | 2393 |
|
director shall require the employer within thirty days following | 2394 |
|
any sale of deposited securities, under this subdivision, to | 2395 |
|
deposit additional securities, surety bond, or combination of | 2396 |
|
both, to make whole the employer's security deposit at the | 2397 |
|
approved level. Any cash remaining from the sale of such | 2398 |
|
securities may, at the discretion of the director, be refunded in | 2399 |
|
whole or in part, or be paid into the unemployment compensation | 2400 |
|
fund to cover future payments required of the organization. | 2401 |
| (d) The required bond or deposit for any nonprofit | 2402 |
|
organization, or group of such organizations approved by the | 2403 |
|
director under division (D) of this section, that is determined by | 2404 |
|
the director to be liable for payments in lieu of contributions | 2405 |
|
effective beginning on and after January 1, 1996, but prior to | 2406 |
|
January 1, 1998, and the required bond or deposit for any renewed | 2407 |
|
elections under division (C)(2)(b) of this section effective | 2408 |
|
during that period shall not exceed one million two hundred fifty | 2409 |
|
thousand dollars. The required bond or deposit for any nonprofit | 2410 |
|
organization, or group of such organizations approved by the | 2411 |
|
director under division (D) of this section, that is determined to | 2412 |
|
be liable for payments in lieu of contributions effective on and | 2413 |
|
after January 1, 1998, and the required bond or deposit for any | 2414 |
|
renewed elections effective on and after January 1, 1998, shall | 2415 |
|
not exceed two million dollars. | 2416 |
| (3) If any nonprofit organization fails to file a bond or | 2417 |
|
make a deposit, or to file a bond in an increased amount or to | 2418 |
|
make whole the amount of a previously made deposit, as provided | 2419 |
|
under this division, the director may terminate the organization's | 2420 |
|
election to make payments in lieu of contributions effective for | 2421 |
|
the quarter following such failure and the termination shall | 2422 |
|
continue for not less than the remainder of that calendar year and | 2423 |
|
the next calendar year, beginning with the quarter in which the | 2424 |
|
termination becomes effective; except that the director may extend | 2425 |
|
for good cause the applicable filing, deposit, or adjustment | 2426 |
|
period by not more than thirty days. | 2427 |
| (D)(1) Two or more nonprofit organizations that have become | 2428 |
|
liable for payments in lieu of contributions, in accordance with | 2429 |
|
division (A) of this section, may file a joint application to the | 2430 |
|
director for the establishment of the group account for the | 2431 |
|
purpose of sharing the cost of benefits paid that are attributable | 2432 |
|
to service in the employ of those employers. Notwithstanding | 2433 |
|
division (E) of section 4141.242 of the Revised Code, hospitals | 2434 |
|
operated by this state or a political subdivision may participate | 2435 |
|
in a group account with nonprofit organizations under the | 2436 |
|
procedures set forth in this section. Each application shall | 2437 |
|
identify and authorize a group representative to act as the | 2438 |
|
group's agent for the purposes of this division. | 2439 |
| (3) Upon establishment of the account, each member of the | 2447 |
|
group shall be liable, in the event that the group representative | 2448 |
|
fails to pay any bill issued to it pursuant to division (B) of | 2449 |
|
this section, for payments in lieu of contributions with respect | 2450 |
|
to each calendar quarter in the amount that bears the same ratio | 2451 |
|
to the total benefits paid in the quarter that are attributable to | 2452 |
|
service performed in the employ of all members of the group as the | 2453 |
|
total wages paid for service in employment by the member in the | 2454 |
|
quarter bear to the total wages paid during the quarter for | 2455 |
|
service performed in the employ of all members of the group. | 2456 |
| (4) The director shall adopt regulations as considered | 2457 |
|
necessary with respect to the following: applications for | 2458 |
|
establishment, bonding, maintenance, and termination of group | 2459 |
|
accounts that are authorized by this section; addition of new | 2460 |
|
members to and withdrawal of active members from such accounts; | 2461 |
|
and the determination of the amounts that are payable under this | 2462 |
|
division by the group representative and in the event of default | 2463 |
|
in payment by the group representative, members of the group, and | 2464 |
|
the time and manner of payments. | 2465 |
| (ii) The director may waive the requirement that a claimant | 2488 |
|
be actively seeking work when the director finds that the | 2489 |
|
individual has been laid off and the employer who laid the | 2490 |
|
individual off has notified the director within ten days after the | 2491 |
|
layoff, that work is expected to be available for the individual | 2492 |
|
within a specified number of days not to exceed forty-five | 2493 |
|
calendar days following the last day the individual worked. In the | 2494 |
|
event the individual is not recalled within the specified period, | 2495 |
|
this waiver shall cease to be operative with respect to that | 2496 |
|
layoff. | 2497 |
| (b) The individual shall be instructed as to the efforts that | 2498 |
|
the individual must make in the search for suitable work, except | 2499 |
|
where the active search for work requirement has been waived under | 2500 |
|
division (A)(4)(a) of this section, and shall keep a record of | 2501 |
|
where and when the individual has sought work in complying with | 2502 |
|
those instructions and, upon request, shall produce that record | 2503 |
|
for examination by the director. | 2504 |
| (c) An individual who is attending a training course approved | 2505 |
|
by the director meets the requirement of this division, if | 2506 |
|
attendance was recommended by the director and the individual is | 2507 |
|
regularly attending the course and is making satisfactory | 2508 |
|
progress. An individual also meets the requirements of this | 2509 |
|
division if the individual is participating and advancing in a | 2510 |
|
training program, as defined in division (P) of section 5709.61 of | 2511 |
|
the Revised Code, and if an enterprise, defined in division (B) of | 2512 |
|
section 5709.61 of the Revised Code, is paying all or part of the | 2513 |
|
cost of the individual's participation in the training program | 2514 |
|
with the intention of hiring the individual for employment as a | 2515 |
|
new employee, as defined in division (L) of section 5709.61 of the | 2516 |
|
Revised Code, for at least ninety days after the individual's | 2517 |
|
completion of the training program. | 2518 |
| (d) An individual who becomes unemployed while attending a | 2519 |
|
regularly established school and whose base period qualifying | 2520 |
|
weeks were earned in whole or in part while attending that school, | 2521 |
|
meets the availability and active search for work requirements of | 2522 |
|
division (A)(4)(a) of this section if the individual regularly | 2523 |
|
attends the school during weeks with respect to which the | 2524 |
|
individual claims unemployment benefits and makes self available | 2525 |
|
on any shift of hours for suitable employment with the | 2526 |
|
individual's most recent employer or any other employer in the | 2527 |
|
individual's base period, or for any other suitable employment to | 2528 |
|
which the individual is directed, under this chapter. | 2529 |
| (f) Notwithstanding any other provisions of this section, no | 2533 |
|
otherwise eligible individual shall be denied benefits for any | 2534 |
|
week because the individual is in training approved under section | 2535 |
|
236(a)(1) of the "Trade Act of 1974," 88 Stat. 1978, 19 U.S.C.A. | 2536 |
|
2296, nor shall that individual be denied benefits by reason of | 2537 |
|
leaving work to enter such training, provided the work left is not | 2538 |
|
suitable employment, or because of the application to any week in | 2539 |
|
training of provisions in this chapter, or any applicable federal | 2540 |
|
unemployment compensation law, relating to availability for work, | 2541 |
|
active search for work, or refusal to accept work. | 2542 |
| For the purposes of division (A)(4)(f) of this section, | 2543 |
|
"suitable employment" means with respect to an individual, work of | 2544 |
|
a substantially equal or higher skill level than the individual's | 2545 |
|
past adversely affected employment, as defined for the purposes of | 2546 |
|
the "Trade Act of 1974," 88 Stat. 1978, 19 U.S.C.A. 2101, and | 2547 |
|
wages for such work at not less than eighty per cent of the | 2548 |
|
individual's average weekly wage as determined for the purposes of | 2549 |
|
that federal act. | 2550 |
| (5) Is unable to obtain suitable work. An individual who is | 2551 |
|
provided temporary work assignments by the individual's employer | 2552 |
|
under agreed terms and conditions of employment, and who is | 2553 |
|
required pursuant to those terms and conditions to inquire with | 2554 |
|
the individual's employer for available work assignments upon the | 2555 |
|
conclusion of each work assignment, is not considered unable to | 2556 |
|
obtain suitable employment if suitable work assignments are | 2557 |
|
available with the employer but the individual fails to contact | 2558 |
|
the employer to inquire about work assignments. | 2559 |
| (6) Participates in reemployment services, such as job search | 2560 |
|
assistance services, if the individual has been determined to be | 2561 |
|
likely to exhaust benefits under this chapter, including | 2562 |
|
compensation payable pursuant to 5 U.S.C.A. Chapter 85, other than | 2563 |
|
extended compensation, and needs reemployment services pursuant to | 2564 |
|
the profiling system established by the director under division | 2565 |
(K)(L) of this section, unless the director determines that: | 2566 |
| (C) The waiting period for total or partial unemployment | 2577 |
|
shall commence on the first day of the first week with respect to | 2578 |
|
which the individual first files a claim for benefits at an | 2579 |
|
employment office or other place of registration maintained or | 2580 |
|
designated by the director or on the first day of the first week | 2581 |
|
with respect to which the individual has otherwise filed a claim | 2582 |
|
for benefits in accordance with the rules of the department of job | 2583 |
|
and family services, provided such claim is allowed by the | 2584 |
|
director. | 2585 |
| (a) The individual's unemployment was due to a labor dispute | 2591 |
|
other than a lockout at any factory, establishment, or other | 2592 |
|
premises located in this or any other state and owned or operated | 2593 |
|
by the employer by which the individual is or was last employed; | 2594 |
|
and for so long as the individual's unemployment is due to such | 2595 |
|
labor dispute. No individual shall be disqualified under this | 2596 |
|
provision if either of the following applies: | 2597 |
| (i) The individual's employment was with such employer at any | 2598 |
|
factory, establishment, or premises located in this state, owned | 2599 |
|
or operated by such employer, other than the factory, | 2600 |
|
establishment, or premises at which the labor dispute exists, if | 2601 |
|
it is shown that the individual is not financing, participating | 2602 |
|
in, or directly interested in such labor dispute; | 2603 |
| (ii) The individual's employment was with an employer not | 2604 |
|
involved in the labor dispute but whose place of business was | 2605 |
|
located within the same premises as the employer engaged in the | 2606 |
|
dispute, unless the individual's employer is a wholly owned | 2607 |
|
subsidiary of the employer engaged in the dispute, or unless the | 2608 |
|
individual actively participates in or voluntarily stops work | 2609 |
|
because of such dispute. If it is established that the claimant | 2610 |
|
was laid off for an indefinite period and not recalled to work | 2611 |
|
prior to the dispute, or was separated by the employer prior to | 2612 |
|
the dispute for reasons other than the labor dispute, or that the | 2613 |
|
individual obtained a bona fide job with another employer while | 2614 |
|
the dispute was still in progress, such labor dispute shall not | 2615 |
|
render the employee ineligible for benefits. | 2616 |
| (iii) The individual has left employment to accept a recall | 2639 |
|
from a prior employer or, except as provided in division | 2640 |
|
(D)(2)(a)(iv) of this section, to accept other employment as | 2641 |
|
provided under section 4141.291 of the Revised Code, or left or | 2642 |
|
was separated from employment that was concurrent employment at | 2643 |
|
the time of the most recent separation or within six weeks prior | 2644 |
|
to the most recent separation where the remuneration, hours, or | 2645 |
|
other conditions of such concurrent employment were substantially | 2646 |
|
less favorable than the individual's most recent employment and | 2647 |
|
where such employment, if offered as new work, would be considered | 2648 |
|
not suitable under the provisions of divisions (E) and (F) of this | 2649 |
|
section. Any benefits that would otherwise be chargeable to the | 2650 |
|
account of the employer from whom an individual has left | 2651 |
|
employment or was separated from employment that was concurrent | 2652 |
|
employment under conditions described in division (D)(2)(a)(iii) | 2653 |
|
of this section, shall instead be charged to the mutualized | 2654 |
|
account created by division (B) of section 4141.25 of the Revised | 2655 |
|
Code, except that any benefits chargeable to the account of a | 2656 |
|
reimbursing employer under division (D)(2)(a)(iii) of this section | 2657 |
|
shall be charged to the account of the reimbursing employer and | 2658 |
|
not to the mutualized account, except as provided in division | 2659 |
|
(D)(2) of section 4141.24 of the Revised Code. | 2660 |
| (iv) When an individual has been issued a definite layoff | 2661 |
|
date by the individual's employer and before the layoff date, the | 2662 |
|
individual quits to accept other employment, the provisions of | 2663 |
|
division (D)(2)(a)(iii) of this section apply and no | 2664 |
|
disqualification shall be imposed under division (D) of this | 2665 |
|
section. However, if the individual fails to meet the employment | 2666 |
|
and earnings requirements of division (A)(2) of section 4141.291 | 2667 |
|
of the Revised Code, then the individual, pursuant to division | 2668 |
|
(A)(5) of this section, shall be ineligible for benefits for any | 2669 |
|
week of unemployment that occurs prior to the layoff date. | 2670 |
| (b) The individual has refused without good cause to accept | 2671 |
|
an offer of suitable work when made by an employer either in | 2672 |
|
person or to the individual's last known address, or has refused | 2673 |
|
or failed to investigate a referral to suitable work when directed | 2674 |
|
to do so by a local employment office of this state or another | 2675 |
|
state, provided that this division shall not cause a | 2676 |
|
disqualification for a waiting week or benefits under the | 2677 |
|
following circumstances: | 2678 |
| (ii) When the individual is attending a training course | 2682 |
|
pursuant to division (A)(4) of this section except, in the event | 2683 |
|
of a refusal to accept an offer of suitable work or a refusal or | 2684 |
|
failure to investigate a referral, benefits thereafter paid to | 2685 |
|
such individual shall not be charged to the account of any | 2686 |
|
employer and, except as provided in division (B)(1)(b) of section | 2687 |
|
4141.241 of the Revised Code, shall be charged to the mutualized | 2688 |
|
account as provided in division (B) of section 4141.25 of the | 2689 |
|
Revised Code. | 2690 |
| (e) The individual became unemployed because of dishonesty in | 2696 |
|
connection with the individual's most recent or any base period | 2697 |
|
work. Remuneration earned in such work shall be excluded from the | 2698 |
|
individual's total base period remuneration and qualifying weeks | 2699 |
|
that otherwise would be credited to the individual for such work | 2700 |
|
in the individual's base period shall not be credited for the | 2701 |
|
purpose of determining the total benefits to which the individual | 2702 |
|
is eligible and the weekly benefit amount to be paid under section | 2703 |
|
4141.30 of the Revised Code. Such excluded remuneration and | 2704 |
|
noncredited qualifying weeks shall be excluded from the | 2705 |
|
calculation of the maximum amount to be charged, under division | 2706 |
|
(D) of section 4141.24 and section 4141.33 of the Revised Code, | 2707 |
|
against the accounts of the individual's base period employers. In | 2708 |
|
addition, no benefits shall thereafter be paid to the individual | 2709 |
|
based upon such excluded remuneration or noncredited qualifying | 2710 |
|
weeks. | 2711 |
| (F) Subject to the special exceptions contained in division | 2734 |
|
(A)(4)(f) of this section and section 4141.301 of the Revised | 2735 |
|
Code, in determining whether any work is suitable for a claimant | 2736 |
|
in the administration of this chapter, the director, in addition | 2737 |
|
to the determination required under division (E) of this section, | 2738 |
|
shall consider the degree of risk to the claimant's health, | 2739 |
|
safety, and morals, the individual's physical fitness for the | 2740 |
|
work, the individual's prior training and experience, the length | 2741 |
|
of the individual's unemployment, the distance of the available | 2742 |
|
work from the individual's residence, and the individual's | 2743 |
|
prospects for obtaining local work. | 2744 |
| (H) The "duration of unemployment" as used in this section | 2751 |
|
means the full period of unemployment next ensuing after a | 2752 |
|
separation from any base period or subsequent work and until an | 2753 |
|
individual has become reemployed in employment subject to this | 2754 |
|
chapter, or the unemployment compensation act of another state, or | 2755 |
|
of the United States, and until such individual has worked six | 2756 |
|
weeks and for those weeks has earned or been paid remuneration | 2757 |
|
equal to six times an average weekly wage of not less than: | 2758 |
|
eighty-five dollars and ten cents per week beginning on June 26, | 2759 |
|
1990; and beginning on and after January 1, 1992, twenty-seven and | 2760 |
|
one-half per cent of the statewide average weekly wage as computed | 2761 |
|
each first day of January under division (B)(3) of section 4141.30 | 2762 |
|
of the Revised Code, rounded down to the nearest dollar, except | 2763 |
|
for purposes of division (D)(2)(c) of this section, such term | 2764 |
|
means the full period of unemployment next ensuing after a | 2765 |
|
separation from such work and until such individual has become | 2766 |
|
reemployed subject to the terms set forth above, and has earned | 2767 |
|
wages equal to one-half of the individual's average weekly wage or | 2768 |
|
sixty dollars, whichever is less. | 2769 |
(H)(I) If a claimant is disqualified under division | 2770 |
|
(D)(2)(a), (c), or (d) of this section or found to be qualified | 2771 |
|
under the exceptions provided in division (D)(2)(a)(i), (iii), or | 2772 |
(iv) of this section or, division (A)(2) of section 4141.291 of | 2773 |
|
the Revised Code, or section 4141.293 of the Revised Code, then | 2774 |
|
benefits that may become payable to such claimant, which are | 2775 |
|
chargeable to the account of the employer from whom the individual | 2776 |
|
was separated under such conditions, shall be charged to the | 2777 |
|
mutualized account provided in section 4141.25 of the Revised | 2778 |
|
Code, provided that no charge shall be made to the mutualized | 2779 |
|
account for benefits chargeable to a reimbursing employer, except | 2780 |
|
as provided in division (D)(2) of section 4141.24 of the Revised | 2781 |
|
Code. In the case of a reimbursing employer, the director shall | 2782 |
|
refund or credit to the account of the reimbursing employer any | 2783 |
|
over-paid benefits that are recovered under division (B) of | 2784 |
|
section 4141.35 of the Revised Code. Amounts chargeable to other | 2785 |
|
states, the United States, or Canada that are subject to | 2786 |
|
agreements and arrangements that are established pursuant to | 2787 |
|
section 4141.43 of the Revised Code shall be credited or | 2788 |
|
reimbursed according to the agreements and arrangements to which | 2789 |
|
the chargeable amounts are subject. | 2790 |
| (a) Benefits based on service in an instructional, research, | 2797 |
|
or principal administrative capacity in an institution of higher | 2798 |
|
education, as defined in division (Y) of section 4141.01 of the | 2799 |
|
Revised Code; or for an educational institution as defined in | 2800 |
|
division (CC) of section 4141.01 of the Revised Code, shall not be | 2801 |
|
paid to any individual for any week of unemployment that begins | 2802 |
|
during the period between two successive academic years or terms, | 2803 |
|
or during a similar period between two regular but not successive | 2804 |
|
terms or during a period of paid sabbatical leave provided for in | 2805 |
|
the individual's contract, if the individual performs such | 2806 |
|
services in the first of those academic years or terms and has a | 2807 |
|
contract or a reasonable assurance that the individual will | 2808 |
|
perform services in any such capacity for any such institution in | 2809 |
|
the second of those academic years or terms. | 2810 |
| (b) Benefits based on service for an educational institution | 2811 |
|
or an institution of higher education in other than an | 2812 |
|
instructional, research, or principal administrative capacity, | 2813 |
|
shall not be paid to any individual for any week of unemployment | 2814 |
|
which begins during the period between two successive academic | 2815 |
|
years or terms of the employing educational institution or | 2816 |
|
institution of higher education, provided the individual performed | 2817 |
|
those services for the educational institution or institution of | 2818 |
|
higher education during the first such academic year or term and, | 2819 |
|
there is a reasonable assurance that such individual will perform | 2820 |
|
those services for any educational institution or institution of | 2821 |
|
higher education in the second of such academic years or terms. | 2822 |
| If compensation is denied to any individual for any week | 2823 |
under division (I)(J)(1)(b) of this section and the individual was | 2824 |
|
not offered an opportunity to perform those services for an | 2825 |
|
institution of higher education or for an educational institution | 2826 |
|
for the second of such academic years or terms, the individual is | 2827 |
|
entitled to a retroactive payment of compensation for each week | 2828 |
|
for which the individual timely filed a claim for compensation and | 2829 |
|
for which compensation was denied solely by reason of division | 2830 |
(I)(J)(1)(b) of this section. An application for retroactive | 2831 |
|
benefits shall be timely filed if received by the director or the | 2832 |
|
director's deputy within or prior to the end of the fourth full | 2833 |
|
calendar week after the end of the period for which benefits were | 2834 |
|
denied because of reasonable assurance of employment. The | 2835 |
|
provision for the payment of retroactive benefits under division | 2836 |
(I)(J)(1)(b) of this section is applicable to weeks of | 2837 |
|
unemployment beginning on and after November 18, 1983. The | 2838 |
provisions under division (I)(J)(1)(b) of this section shall be | 2839 |
|
retroactive to September 5, 1982, only if, as a condition for full | 2840 |
|
tax credit against the tax imposed by the "Federal Unemployment | 2841 |
|
Tax Act," 53 Stat. 183 (1939), 26 U.S.C.A. 3301 to 3311, the | 2842 |
|
United States secretary of labor determines that retroactivity is | 2843 |
|
required by federal law. | 2844 |
| (c) With respect to weeks of unemployment beginning after | 2845 |
|
December 31, 1977, benefits shall be denied to any individual for | 2846 |
|
any week which commences during an established and customary | 2847 |
|
vacation period or holiday recess, if the individual performs any | 2848 |
services described in divisions (I)(J)(1)(a) and (b) of this | 2849 |
|
section in the period immediately before the vacation period or | 2850 |
|
holiday recess, and there is a reasonable assurance that the | 2851 |
|
individual will perform any such services in the period | 2852 |
|
immediately following the vacation period or holiday recess. | 2853 |
| (d) With respect to any services described in division | 2854 |
(I)(J)(1)(a), (b), or (c) of this section, benefits payable on the | 2855 |
|
basis of services in any such capacity shall be denied as | 2856 |
specified in division (I)(J)(1)(a), (b), or (c) of this section to | 2857 |
|
any individual who performs such services in an educational | 2858 |
|
institution or institution of higher education while in the employ | 2859 |
|
of an educational service agency. For this purpose, the term | 2860 |
|
"educational service agency" means a governmental agency or | 2861 |
|
governmental entity that is established and operated exclusively | 2862 |
|
for the purpose of providing services to one or more educational | 2863 |
|
institutions or one or more institutions of higher education. | 2864 |
| (2) No disqualification will be imposed, between academic | 2869 |
|
years or terms or during a vacation period or holiday recess under | 2870 |
|
this division, unless the director or the director's deputy has | 2871 |
|
received a statement in writing from the educational institution | 2872 |
|
or institution of higher education that the claimant has a | 2873 |
|
contract for, or a reasonable assurance of, reemployment for the | 2874 |
|
ensuing academic year or term. | 2875 |
| (3) If an individual has employment with an educational | 2876 |
|
institution or an institution of higher education and employment | 2877 |
|
with a noneducational employer, during the base period of the | 2878 |
|
individual's benefit year, then the individual may become eligible | 2879 |
|
for benefits during the between-term, or vacation or holiday | 2880 |
|
recess, disqualification period, based on employment performed for | 2881 |
|
the noneducational employer, provided that the employment is | 2882 |
|
sufficient to qualify the individual for benefit rights separately | 2883 |
|
from the benefit rights based on school employment. The weekly | 2884 |
|
benefit amount and maximum benefits payable during a | 2885 |
|
disqualification period shall be computed based solely on the | 2886 |
|
nonschool employment. | 2887 |
(J)(K) Benefits shall not be paid on the basis of employment | 2888 |
|
performed by an alien, unless the alien had been lawfully admitted | 2889 |
|
to the United States for permanent residence at the time the | 2890 |
|
services were performed, was lawfully present for purposes of | 2891 |
|
performing the services, or was otherwise permanently residing in | 2892 |
|
the United States under color of law at the time the services were | 2893 |
|
performed, under section 212(d)(5) of the "Immigration and | 2894 |
|
Nationality Act," 66 Stat. 163, 8 U.S.C.A. 1101: | 2895 |
| (2) When determining if a claimant has experienced domestic | 2964 |
|
abuse for the purpose of receiving unemployment compensation | 2965 |
|
benefits, the director shall require the claimant to provide | 2966 |
|
documentation of domestic abuse that may include police or court | 2967 |
|
records or other documentation of abuse from a shelter worker, | 2968 |
|
attorney, member of the clergy, or medical or other professional | 2969 |
|
from whom the claimant has sought assistance. | 2970 |
| (2) The claimant has exhausted all rights to regular | 3007 |
|
benefits, all rights to extended benefits, and all rights to | 3008 |
|
benefits under section 2002 of division B, title n, known as "The | 3009 |
|
Assistance for Unemployed Workers and Struggling Families Act" of | 3010 |
|
the "American Recovery and Reinvestment Act of 2009," Pub. L. No. | 3011 |
|
111-5, 123 Stat. 115, as amended. | 3012 |
| (3) The claimant is enrolled in a training program approved | 3013 |
|
by the director or in a job training program authorized under the | 3014 |
|
"Workforce Investment Act of 1998," 112 Stat. 936, 29 U.S.C. 2801 | 3015 |
|
et seq., as amended; except that the training program must prepare | 3016 |
|
the claimant for entry into a high-demand occupation if the | 3017 |
|
director determines that the claimant separated from a declining | 3018 |
|
occupation or has been involuntarily and indefinitely separated | 3019 |
|
from employment as a result of a permanent reduction of operations | 3020 |
|
at the claimant's place of employment. | 3021 |
| (C) The amount of a claimant's weekly training extension | 3024 |
|
benefit shall equal the claimant's weekly benefit amount as | 3025 |
|
determined for the most recent benefit year, less any deductible | 3026 |
|
income as determined under section 4141.31 of the Revised Code and | 3027 |
|
any reduction required by division (D) of this section. The total | 3028 |
|
amount of training extension benefits payable to a claimant shall | 3029 |
|
be equal to twenty-six times the claimant's average weekly benefit | 3030 |
|
amount for the most recent benefit year. A claimant who is | 3031 |
|
receiving training extension benefits shall not be denied training | 3032 |
|
extension benefits because the claimant may not satisfy the | 3033 |
|
requirements of division (A)(4) or (5) of section 4141.29 of the | 3034 |
|
Revised Code. The director shall charge any training extension | 3035 |
|
benefits paid pursuant to this section to the mutualized account | 3036 |
|
created in section 4141.25 of the Revised Code and shall not | 3037 |
|
charge an employer's account for any training extension benefits | 3038 |
|
paid to a claimant. | 3039 |
| Sec. 4141.50. There is hereby created the short-time | 3045 |
|
compensation program. An employer who wishes to participate in the | 3046 |
|
program shall submit a plan to the director of job and family | 3047 |
|
services that satisfies the requirements listed in section 4141.51 | 3048 |
|
of the Revised Code. If an employee the employer covers under the | 3049 |
|
plan is subject to a collective bargaining agreement, the employer | 3050 |
|
shall have the employee's collective bargaining agent approve the | 3051 |
|
plan in writing. The written approval shall include a statement as | 3052 |
|
to whether the agent believes the implementation of the plan is | 3053 |
|
consistent with federal law. The employer shall submit that | 3054 |
|
approval to the director with the employer's proposed plan. | 3055 |
| Sec. 4141.53. A participating employer may modify a | 3108 |
|
short-time compensation plan approved under section 4141.51 of the | 3109 |
|
Revised Code to meet changed conditions regarding the | 3110 |
|
participating employer's business if the modification conforms to | 3111 |
|
the basic provisions of the plan as approved by the director of | 3112 |
|
job and family services. Before implementing the proposed change, | 3113 |
|
the participating employer shall report the proposed change in | 3114 |
|
writing to the director. If the director determines that the | 3115 |
|
proposed change will result in a substantial modification of the | 3116 |
|
plan approved under section 4141.51 of the Revised Code, the | 3117 |
|
director shall reevaluate the proposed modified plan to determine | 3118 |
|
whether the plan continues to satisfy the requirements listed in | 3119 |
|
divisions (A)(1) to (7) of that section. The director shall | 3120 |
|
approve or deny the modification in accordance with that section. | 3121 |
|
If the director determines that the proposed change does not | 3122 |
|
result in a substantial modification to the approved plan, the | 3123 |
|
director shall approve the proposed change unless the director | 3124 |
|
determines that the modification does not conform to the basic | 3125 |
|
provisions of the approved plan. | 3126 |
| (C) Notwithstanding section 4141.29 of the Revised Code, the | 3153 |
|
director of job and family services shall not deny short-time | 3154 |
|
compensation benefits for a week to an otherwise eligible employee | 3155 |
|
because the employee is unavailable for work other than as | 3156 |
|
required under division (B)(2) of this section, is not actively | 3157 |
|
searching for work, or refuses to apply for or to accept work with | 3158 |
|
an employer other than with the employer who is implementing the | 3159 |
|
plan. | 3160 |
| (D) The director shall pay an employee who is eligible for a | 3161 |
|
weekly short-time compensation benefit in an amount equal to the | 3162 |
|
employee's regular weekly benefit amount for a period of total | 3163 |
|
unemployment as described in division (D) of section 4141.30 of | 3164 |
|
the Revised Code multiplied by the nearest full percentage of | 3165 |
|
reduction of the employee's wages under the employer's short-time | 3166 |
|
compensation plan. The director shall round the amount of a | 3167 |
|
short-time compensation benefit that is not a multiple of one | 3168 |
|
dollar to the next highest dollar amount. | 3169 |
| (E) An employee is not entitled to receive short-time | 3170 |
|
compensation benefits and regular unemployment compensation | 3171 |
|
benefits that exceed the maximum total benefits payable to the | 3172 |
|
employee in a benefit year under section 4141.30 of the Revised | 3173 |
|
Code. An employee shall receive short-time compensation benefits | 3174 |
|
for a maximum of twenty-six weeks regardless of whether the | 3175 |
|
employee has received the total maximum benefits payable for the | 3176 |
|
employee's benefit year. An individual who receives short-time | 3177 |
|
compensation benefits is not entitled to receive benefits for | 3178 |
|
partial unemployment under division (C) of section 4141.30 of the | 3179 |
|
Revised Code for any week during which the individual participates | 3180 |
|
in a short-time compensation plan. The director shall not pay an | 3181 |
|
individual short-time compensation benefits for a week during | 3182 |
|
which the individual performs paid work for the employer | 3183 |
|
implementing the short-time compensation plan that exceeds the | 3184 |
|
reduced hours established under the plan. | 3185 |
| (F) An individual participating in a short-time compensation | 3186 |
|
plan may participate in training, including a training program | 3187 |
|
sponsored by the employer implementing the plan or funded under | 3188 |
|
the federal "Workforce Development Act of 1998," 112 Stat. 936, 29 | 3189 |
|
U.S.C. 2801 et seq., as amended, to enhance job skills if the | 3190 |
|
program is approved by the director. | 3191 |
| (E) All wages or other payments to an individual under this | 3217 |
|
section shall be treated as payments of unemployment insurance for | 3218 |
|
purposes of section 209 of the "Social Security Act," 49 Stat. | 3219 |
|
625, 42 U.S.C. 409, as amended, and for purposes of subtitle A and | 3220 |
|
sections 3101 and 3111 of the "Internal Revenue Code of 1986," 100 | 3221 |
|
Stat. 2085, 26 U.S.C. 1 et seq., as amended. | 3222 |
| Sec. 4141.57. (A) The director of job and family services | 3223 |
|
shall adopt rules in accordance with Chapter 119. of the Revised | 3224 |
|
Code to establish criteria an employer shall satisfy to | 3225 |
|
participate in the bridge to work program created under section | 3226 |
|
4141.56 of the Revised Code. The criteria shall include a | 3227 |
|
requirement that the employer provide coverage under Chapters | 3228 |
|
4121., 4123., 4127., and 4131. of the Revised Code to claimants | 3229 |
|
who participate in the program and who are employed by the | 3230 |
|
employer under the program. The director shall certify an employer | 3231 |
|
to participate in the program if the employer satisfies the | 3232 |
|
criteria established by the director in the rules the director | 3233 |
|
adopts unless any of the following circumstances apply: | 3234 |
| (5) The employer previously has participated in the program | 3251 |
|
and the director has determined that the employer failed to abide | 3252 |
|
by any of the requirements specified in divisions (B), (C), or (D) | 3253 |
|
of this section, or by any other requirements that the director | 3254 |
|
establishes for employers under division (A) of this section, | 3255 |
|
unless the employer provides assurances that it has not displaced | 3256 |
|
existing workers pursuant to the requirements of division (B) of | 3257 |
|
this section. | 3258 |
| (C) An employer participating in the bridge to work program | 3283 |
|
shall not, by means of assigning work activities under the | 3284 |
|
program, impair an existing contract for services or a collective | 3285 |
|
bargaining agreement. Such an employer shall not undertake any | 3286 |
|
activity that would be inconsistent with the terms of a collective | 3287 |
|
bargaining agreement without the written concurrence of the labor | 3288 |
|
organization that is signatory to the collective bargaining | 3289 |
|
agreement. | 3290 |
| (D) If, after twenty-four weeks of participation in the | 3291 |
|
program, an employer has not made an offer of suitable long-term | 3292 |
|
employment to any claimant participating in the program who was | 3293 |
|
placed with the employer and who has completed the program, the | 3294 |
|
director shall bar the employer from further participation in the | 3295 |
|
program. The director may impose additional conditions on | 3296 |
|
participating employers to ensure that an appropriate number of | 3297 |
|
participants receive offers of suitable long-term employment. | 3298 |
| (E) If the director determines, based on information provided | 3299 |
|
to the director or acquired by the director by means of the | 3300 |
|
administration and oversight functions of the director under this | 3301 |
|
chapter, that an employer participating in the bridge to work | 3302 |
|
program has violated a requirement of this section or section | 3303 |
|
4141.56 of the Revised Code, the director shall bar the employer | 3304 |
|
from further participation in the program. The director shall | 3305 |
|
adopt rules in accordance with Chapter 119. of the Revised Code to | 3306 |
|
establish a process to allow a claimant participating in the | 3307 |
|
program, or any other affected individual or entity, to file a | 3308 |
|
complaint with the director regarding a violation of any | 3309 |
|
requirement or prohibition under this section or section 4141.56 | 3310 |
|
of the Revised Code. | 3311 |
| Any wages paid to a claimant under section 4141.56 of the | 3319 |
|
Revised Code, and any work activities performed by the claimant | 3320 |
|
individual as a participant in the bridge to work program, shall | 3321 |
|
not be construed so as to render such individual ineligible to | 3322 |
|
receive emergency unemployment compensation under Title IV of the | 3323 |
|
"Supplemental Appropriations Act," 2008, Pub. Law 110-252, 26 | 3324 |
|
U.S.C. 3304 note. | 3325 |
| (E) The sale of alcohol to physicians, dentists, druggists, | 3352 |
|
veterinary surgeons, manufacturers, hospitals, infirmaries, or | 3353 |
|
medical or educational institutions using the alcohol for | 3354 |
|
medicinal, mechanical, chemical, or scientific purposes; | 3355 |
| (F) The sale, gift, or keeping for sale by druggists and | 3356 |
|
others of any of the medicinal preparations manufactured in | 3357 |
|
accordance with the formulas prescribed by the United States | 3358 |
|
Pharmacopoeia and National Formulary, patent or proprietary | 3359 |
|
preparations, and other bona fide medicinal and technical | 3360 |
|
preparations, which contain no more alcohol than is necessary to | 3361 |
|
hold the medicinal agents in solution and to preserve the same, | 3362 |
|
which are manufactured and sold as medicine and not as beverages, | 3363 |
|
are unfit for use for beverage purposes, and the sale of which | 3364 |
|
does not require the payment of a United States liquor dealer's | 3365 |
|
tax; | 3366 |
| (G) The manufacture and sale of tinctures or of toilet, | 3367 |
|
medicinal, and antiseptic preparations and solutions not intended | 3368 |
|
for internal human use nor to be sold as beverages, and which are | 3369 |
|
unfit for beverage purposes, if upon the outside of each bottle, | 3370 |
|
box, or package of which there is printed in the English language, | 3371 |
|
conspicuously and legibly, the quantity by volume of alcohol in | 3372 |
|
the preparation or solution; | 3373 |
| (K) The purchase and importation into this state or the | 3385 |
|
purchase at wholesale from A or B permit holders in this state of | 3386 |
|
beer and intoxicating liquor for use in manufacturing processes of | 3387 |
|
nonbeverage food products under terms prescribed by the division, | 3388 |
|
provided that the terms prescribed by the division shall not | 3389 |
|
increase the cost of the beer or intoxicating liquor to any | 3390 |
|
person, firm, or corporation purchasing and importing it into this | 3391 |
|
state or purchasing it from an A or B permit holder for that use; | 3392 |
| (L) Any resident of this state or any member of the armed | 3393 |
|
forces of the United States, who has attained the age of | 3394 |
|
twenty-one years, from bringing into this state, for personal use | 3395 |
|
and not for resale, not more than one liter of spirituous liquor, | 3396 |
|
four and one-half liters of wine, or two hundred eighty-eight | 3397 |
|
ounces of beer in any thirty-day period, and the same is free of | 3398 |
|
any tax consent fee when the resident or member of the armed | 3399 |
|
forces physically possesses and accompanies the spirituous liquor, | 3400 |
|
wine, or beer on returning from a foreign country, another state, | 3401 |
|
or an insular possession of the United States; | 3402 |
| (M) Persons, at least twenty-one years of age, who collect | 3403 |
|
ceramic commemorative bottles containing spirituous liquor that | 3404 |
|
have unbroken federal tax stamps on them from selling or trading | 3405 |
|
the bottles to other collectors. The bottles shall originally have | 3406 |
|
been purchased at retail from the division, legally imported under | 3407 |
|
division (L) of this section, or legally imported pursuant to a | 3408 |
|
supplier registration issued by the division. The sales shall be | 3409 |
|
for the purpose of exchanging a ceramic commemorative bottle | 3410 |
|
between private collectors and shall not be for the purpose of | 3411 |
|
selling the spirituous liquor for personal consumption. The sale | 3412 |
|
or exchange authorized by this division shall not occur on the | 3413 |
|
premises of any permit holder, shall not be made in connection | 3414 |
|
with the business of any permit holder, and shall not be made in | 3415 |
|
connection with any mercantile business. | 3416 |
| (3) "Gift, award, or prize" means anything of value that is | 3457 |
|
offered or purportedly offered, or given or purportedly given by | 3458 |
|
chance, at no cost to the receiver and with no obligation to | 3459 |
|
purchase goods or services. As used in this division, "chance" | 3460 |
|
includes a situation in which a person is guaranteed to receive an | 3461 |
|
item and, at the time of the offer or purported offer, the | 3462 |
|
telephone solicitor does not identify the specific item that the | 3463 |
|
person will receive. | 3464 |
| (4) "Goods or services" means any real property or any | 3465 |
|
tangible or intangible personal property, or services of any kind | 3466 |
|
provided or offered to a person. "Goods or services" includes, but | 3467 |
|
is not limited to, advertising; labor performed for the benefit of | 3468 |
|
a person; personal property intended to be attached to or | 3469 |
|
installed in any real property, regardless of whether it is so | 3470 |
|
attached or installed; timeshare estates or licenses; and extended | 3471 |
|
service contracts. | 3472 |
| (8) "Telephone solicitor" means a person that engages in | 3497 |
|
telephone solicitation directly or through one or more | 3498 |
|
salespersons either from a location in this state, or from a | 3499 |
|
location outside this state to persons in this state. "Telephone | 3500 |
|
solicitor" includes, but is not limited to, any such person that | 3501 |
|
is an owner, operator, officer, or director of, partner in, or | 3502 |
|
other individual engaged in the management activities of, a | 3503 |
|
business. | 3504 |
| (9) "Magazines distributed as controlled circulation | 3505 |
|
publications" means magazines containing at least twenty-four | 3506 |
|
pages, at least twenty-five per cent editorial content, issued at | 3507 |
|
regular intervals four or more times a year, and circulated | 3508 |
|
without charge to the recipient, provided that such magazines are | 3509 |
|
not owned or controlled by individuals or business concerns which | 3510 |
|
conduct such publications as an auxiliary to, and essentially for | 3511 |
|
the advancement of the main business or calling of, those who own | 3512 |
|
or control them. | 3513 |
| (2) A person engaged in telephone solicitation solely for | 3520 |
|
religious or political purposes; a charitable organization, | 3521 |
|
fund-raising counsel, or professional solicitor in compliance with | 3522 |
|
the registration and reporting requirements of Chapter 1716. of | 3523 |
|
the Revised Code; or any person or other entity exempt under | 3524 |
|
section 1716.03 of the Revised Code from filing a registration | 3525 |
|
statement under section 1716.02 of the Revised Code; | 3526 |
| (3) A person, making a telephone solicitation involving a | 3527 |
|
home solicitation sale as defined in section 1345.21 of the | 3528 |
|
Revised Code, that makes the sales presentation and completes the | 3529 |
|
sale at a later, face-to-face meeting between the seller and the | 3530 |
|
purchaser rather than during the telephone solicitation. However, | 3531 |
|
if the person, following the telephone solicitation, causes | 3532 |
|
another person to collect the payment of any money, this exemption | 3533 |
|
does not apply. | 3534 |
| (4) A licensed securities, commodities, or investment broker, | 3535 |
|
dealer, investment advisor, or associated person when making a | 3536 |
|
telephone solicitation within the scope of the person's license. | 3537 |
|
As used in division (B)(4) of this section, "licensed securities, | 3538 |
|
commodities, or investment broker, dealer, investment advisor, or | 3539 |
|
associated person" means a person subject to licensure or | 3540 |
|
registration as such by the securities and exchange commission; | 3541 |
|
the National Association of Securities Dealers or other | 3542 |
|
self-regulatory organization, as defined by 15 U.S.C.A. 78c; by | 3543 |
|
the division of securities under Chapter 1707. of the Revised | 3544 |
|
Code; or by an official or agency of any other state of the United | 3545 |
|
States. | 3546 |
| (b) An issuer, or its subsidiary, that formerly had a class | 3571 |
|
of securities that met the criteria set forth in division | 3572 |
|
(B)(6)(a) of this section if the issuer, or its subsidiary, has a | 3573 |
|
net worth in excess of one hundred million dollars, files or its | 3574 |
|
parent files with the securities and exchange commission an S.E.C. | 3575 |
|
form 10-K, and has continued in substantially the same business | 3576 |
|
since it had a class of securities that met the criteria in | 3577 |
|
division (B)(6)(a) of this section. As used in division (B)(6)(b) | 3578 |
|
of this section, "issuer" and "subsidiary" include the successor | 3579 |
|
to an issuer or subsidiary. | 3580 |
| (8) A person soliciting the sale of any book, record, audio | 3586 |
|
tape, compact disc, or video, if the person allows the purchaser | 3587 |
|
to review the merchandise for at least seven days and provides a | 3588 |
|
full refund within thirty days to a purchaser who returns the | 3589 |
|
merchandise or if the person solicits the sale on behalf of a | 3590 |
|
membership club operating in compliance with regulations adopted | 3591 |
|
by the federal trade commission in 16 C.F.R. 425; | 3592 |
| (9) A supervised financial institution or its subsidiary. As | 3593 |
|
used in division (B)(9) of this section, "supervised financial | 3594 |
|
institution" means a bank, trust company, savings and loan | 3595 |
|
association, savings bank, credit union, industrial loan company, | 3596 |
|
consumer finance lender, commercial finance lender, or institution | 3597 |
|
described in section 2(c)(2)(F) of the "Bank Holding Company Act | 3598 |
|
of 1956," 12 U.S.C.A. 1841(c)(2)(F), as amended, supervised by an | 3599 |
|
official or agency of the United States, this state, or any other | 3600 |
|
state of the United States; or a licensee or registrant under | 3601 |
|
sections 1321.01 to 1321.19, 1321.51 to 1321.60, or 1321.71 to | 3602 |
|
1321.83 of the Revised Code. | 3603 |
| (b) A licensed insurance broker, agent, or solicitor when | 3609 |
|
soliciting within the scope of the person's license. As used in | 3610 |
|
division (B)(10)(b) of this section, "licensed insurance broker, | 3611 |
|
agent, or solicitor" means any person licensed as an insurance | 3612 |
|
broker, agent, or solicitor by the superintendent of insurance | 3613 |
|
pursuant to Title XXXIX of the Revised Code. | 3614 |
| (d) The telephone solicitor is a publisher of a periodical or | 3630 |
of magazines distributed as controlled circulation publications as | 3631 |
defined in division (CC) of section 5739.01 of the Revised Code | 3632 |
|
and is soliciting sales of advertising, subscriptions, reprints, | 3633 |
|
lists, information databases, conference participation or | 3634 |
|
sponsorships, trade shows or media products related to the | 3635 |
|
periodical or magazine, or other publishing services provided by | 3636 |
|
the controlled circulation publication. | 3637 |
| (ii) The catalog includes at least ten pages of written | 3653 |
|
material or an equivalent amount of material in electronic form on | 3654 |
|
the internet or an on-line computer service, the person does not | 3655 |
|
solicit customers by telephone but solely receives telephone calls | 3656 |
|
made in response to the catalog, and during the calls the person | 3657 |
|
takes orders but does not engage in further solicitation of the | 3658 |
|
purchaser. As used in division (B)(13)(b)(ii) of this section, | 3659 |
|
"further solicitation" does not include providing the purchaser | 3660 |
|
with information about, or attempting to sell, any other item in | 3661 |
|
the catalog that prompted the purchaser's call or in a | 3662 |
|
substantially similar catalog issued by the seller. | 3663 |
| (17) A person that solicits sales through a television | 3673 |
|
program or advertisement that is presented in the same market area | 3674 |
|
no fewer than twenty days per month or offers for sale no fewer | 3675 |
|
than ten distinct items of goods or services; and offers to the | 3676 |
|
purchaser an unconditional right to return any good or service | 3677 |
|
purchased within a period of at least seven days and to receive a | 3678 |
|
full refund within thirty days after the purchaser returns the | 3679 |
|
good or cancels the service; | 3680 |
| (c) The person makes telephone solicitations on behalf of | 3730 |
|
only exempt persons, the person and each exempt person on whose | 3731 |
|
behalf telephone solicitations are made have entered into a | 3732 |
|
written contract that specifies the manner in which the telephone | 3733 |
|
solicitations are to be conducted and that at a minimum requires | 3734 |
|
compliance with the telemarketing sales rule adopted by the | 3735 |
|
federal trade commission in 16 C.F.R. part 310, and the person | 3736 |
|
conducts the telephone solicitations in the manner specified in | 3737 |
|
the written contract. | 3738 |
| (ii) A publisher that solicits the sale of the publisher's | 3763 |
|
periodical or magazine of general, paid circulation, or a person | 3764 |
|
that solicits a sale of that nature as authorized by a publisher | 3765 |
|
under a written agreement directly with a publisher's | 3766 |
|
clearinghouse provided the person is a resident of Ohio for more | 3767 |
|
than three years and initiates all telephone solicitations from | 3768 |
|
Ohio and the person conducts the solicitation and sale in | 3769 |
|
compliance with 16 C.F.R. part 310, as adopted by the federal | 3770 |
|
trade commission. | 3771 |
| (22) A person that solicits the sale of food, as defined in | 3776 |
|
section 3715.01 of the Revised Code, or the sale of products of | 3777 |
|
horticulture, as defined in section 5739.01 of the Revised Code, | 3778 |
|
if the person does not intend the solicitation to result in, or | 3779 |
|
the solicitation actually does not result in, a sale that costs | 3780 |
|
the purchaser an amount greater than five hundred dollars. | 3781 |
| (f) Neither the person nor any of its principals has had | 3816 |
|
entered against them an injunction or a final judgment or order, | 3817 |
|
including an agreed judgment or order, an assurance of voluntary | 3818 |
|
compliance, or any similar instrument, in any civil or | 3819 |
|
administrative action involving engaging in a pattern of corrupt | 3820 |
|
practices, fraud, theft, embezzlement, fraudulent conversion, or | 3821 |
|
misappropriation of property; the use of any untrue, deceptive, or | 3822 |
|
misleading representation; or the use of any unfair, unlawful, | 3823 |
|
deceptive, or unconscionable trade act or practice. | 3824 |
| (26) An institution defined as a home health agency in | 3825 |
|
section 3701.881 of the Revised Code, that conducts all telephone | 3826 |
|
solicitation activities according to sections 310.3, 310.4, and | 3827 |
|
310.5 of the telemarketing sales rules adopted by the federal | 3828 |
|
trade commission in 16 C.F.R. part 310, and engages in telephone | 3829 |
|
solicitation only within the scope of the institution's | 3830 |
|
certification, accreditation, contract with the department of | 3831 |
|
aging, or status as a home health agency; and that meets one of | 3832 |
|
the following requirements: | 3833 |
| Sec. 5733.01. (A) The tax provided by this chapter for | 3876 |
|
domestic corporations shall be the amount charged against each | 3877 |
|
corporation organized for profit under the laws of this state and | 3878 |
|
each nonprofit corporation organized pursuant to Chapter 1729. of | 3879 |
|
the Revised Code, except as provided in sections 5733.09 and | 3880 |
|
5733.10 of the Revised Code, for the privilege of exercising its | 3881 |
|
franchise during the calendar year in which that amount is | 3882 |
|
payable, and the tax provided by this chapter for foreign | 3883 |
|
corporations shall be the amount charged against each corporation | 3884 |
|
organized for profit and each nonprofit corporation organized or | 3885 |
|
operating in the same or similar manner as nonprofit corporations | 3886 |
|
organized under Chapter 1729. of the Revised Code, under the laws | 3887 |
|
of any state or country other than this state, except as provided | 3888 |
|
in sections 5733.09 and 5733.10 of the Revised Code, for the | 3889 |
|
privilege of doing business in this state, owning or using a part | 3890 |
|
or all of its capital or property in this state, holding a | 3891 |
|
certificate of compliance with the laws of this state authorizing | 3892 |
|
it to do business in this state, or otherwise having nexus in or | 3893 |
|
with this state under the Constitution of the United States, | 3894 |
|
during the calendar year in which that amount is payable. | 3895 |
| (B) A corporation is subject to the tax imposed by section | 3896 |
|
5733.06 of the Revised Code for each calendar year that it is so | 3897 |
|
organized, doing business, owning or using a part or all of its | 3898 |
|
capital or property, holding a certificate of compliance, or | 3899 |
|
otherwise having nexus in or with this state under the | 3900 |
|
Constitution of the United States, on the first day of January of | 3901 |
|
that calendar year. | 3902 |
| (2) Any sale, exchange, or other disposition of the person's | 3925 |
|
interest in the disregarded entity, whether held directly or | 3926 |
|
indirectly, shall be treated as a sale, exchange, or other | 3927 |
|
disposition of the person's share of the disregarded entity's | 3928 |
|
underlying assets or liabilities, and the gain or loss from such | 3929 |
|
sale, exchange, or disposition shall be included in the person's | 3930 |
|
net income under this chapter. | 3931 |
| (b) A corporation satisfying the description in division | 3942 |
|
(E)(5), (6), (7), (8), or (10) of section 5751.01 of the Revised | 3943 |
|
Code that is not a financial institution, insurance company, or | 3944 |
|
dealer in intangibles is subject to the taxes imposed under this | 3945 |
|
chapter as a corporation and not subject to tax as a financial | 3946 |
|
institution, and shall pay the greater of the minimum payment | 3947 |
|
required under division (E) of section 5733.06 of the Revised Code | 3948 |
|
or the difference between all the taxes charged under this | 3949 |
|
chapter, without regard to division (G)(2) of this section, less | 3950 |
|
any credits allowable against such tax. | 3951 |
| (ii) For tax year 2006, the greater of the minimum payment | 3961 |
|
required under division (E) of section 5733.06 of the Revised Code | 3962 |
|
or four-fifths of the difference between all taxes charged the | 3963 |
|
corporation under this chapter and any credits allowable against | 3964 |
|
such tax, except the qualifying pass-through entity tax credit | 3965 |
|
described in division (A)(30) and the refundable credits described | 3966 |
|
in divisions (A)(31) to (35) of section 5733.98 of the Revised | 3967 |
|
Code; | 3968 |
| (iii) For tax year 2007, the greater of the minimum payment | 3969 |
|
required under division (E) of section 5733.06 of the Revised Code | 3970 |
|
or three-fifths of the difference between all taxes charged the | 3971 |
|
corporation under this chapter and any credits allowable against | 3972 |
|
such tax, except the qualifying pass-through entity tax credit | 3973 |
described in division (A)(30)(28) and the refundable credits | 3974 |
described in divisions (A)(31)(29) to (35)(33) of section 5733.98 | 3975 |
|
of the Revised Code; | 3976 |
| (iv) For tax year 2008, the greater of the minimum payment | 3977 |
|
required under division (E) of section 5733.06 of the Revised Code | 3978 |
|
or two-fifths of the difference between all taxes charged the | 3979 |
|
corporation under this chapter and any credits allowable against | 3980 |
|
such tax, except the qualifying pass-through entity tax credit | 3981 |
|
described in division (A)(30) and the refundable credits described | 3982 |
|
in divisions (A)(31) to (35) of section 5733.98 of the Revised | 3983 |
|
Code; | 3984 |
| (v) For tax year 2009, the greater of the minimum payment | 3985 |
|
required under division (E) of section 5733.06 of the Revised Code | 3986 |
|
or one-fifth of the difference between all taxes charged the | 3987 |
|
corporation under this chapter and any credits allowable against | 3988 |
|
such tax, except the qualifying pass-through entity tax credit | 3989 |
|
described in division (A)(30) and the refundable credits described | 3990 |
|
in divisions (A)(31), (32), (33), and (34) of section 5733.98 of | 3991 |
|
the Revised Code; | 3992 |
| (b) A corporation shall subtract from the amount calculated | 3994 |
|
under division (G)(2)(a)(ii), (iii), (iv), or (v) of this section | 3995 |
|
any qualifying pass-through entity tax credit described in | 3996 |
|
division (A)(30) and any refundable credits described in divisions | 3997 |
|
(A)(31) to (35) of section 5733.98 of the Revised Code to which | 3998 |
|
the corporation is entitled. Any unused qualifying pass-through | 3999 |
|
entity tax credit is not refundable. | 4000 |
| (A) "Person" includes individuals, receivers, assignees, | 4102 |
|
trustees in bankruptcy, estates, firms, partnerships, | 4103 |
|
associations, joint-stock companies, joint ventures, clubs, | 4104 |
|
societies, corporations, the state and its political subdivisions, | 4105 |
|
and combinations of individuals of any form. | 4106 |
| (b) An item of tangible personal property is or is to be | 4121 |
|
installed, except property, the purchase of which would not be | 4122 |
|
subject to the tax imposed by section 5739.02 of the Revised Code | 4123 |
|
or property that is or is to be incorporated into and will become | 4124 |
|
a part of a production, transmission, transportation, or | 4125 |
|
distribution system for the delivery of a public utility service; | 4126 |
| (e) Automatic data processing, computer services, or | 4132 |
|
electronic information services are or are to be provided for use | 4133 |
|
in business when the true object of the transaction is the receipt | 4134 |
|
by the consumer of automatic data processing, computer services, | 4135 |
|
or electronic information services rather than the receipt of | 4136 |
|
personal or professional services to which automatic data | 4137 |
|
processing, computer services, or electronic information services | 4138 |
|
are incidental or supplemental. Notwithstanding any other | 4139 |
|
provision of this chapter, such transactions that occur between | 4140 |
|
members of an affiliated group are not sales. An "affiliated | 4141 |
|
group" means two or more persons related in such a way that one | 4142 |
|
person owns or controls the business operation of another member | 4143 |
|
of the group. In the case of corporations with stock, one | 4144 |
|
corporation owns or controls another if it owns more than fifty | 4145 |
|
per cent of the other corporation's common stock with voting | 4146 |
|
rights. | 4147 |
| (q) On and after August 1, 2003, personal care service is or | 4169 |
|
is to be provided to an individual. As used in this division, | 4170 |
|
"personal care service" includes skin care, the application of | 4171 |
|
cosmetics, manicuring, pedicuring, hair removal, tattooing, body | 4172 |
|
piercing, tanning, massage, and other similar services. "Personal | 4173 |
|
care service" does not include a service provided by or on the | 4174 |
|
order of a licensed physician or licensed chiropractor, or the | 4175 |
|
cutting, coloring, or styling of an individual's hair. | 4176 |
| (r) On and after August 1, 2003, the transportation of | 4177 |
|
persons by motor vehicle or aircraft is or is to be provided, when | 4178 |
|
the transportation is entirely within this state, except for | 4179 |
|
transportation provided by an ambulance service, by a transit bus, | 4180 |
|
as defined in section 5735.01 of the Revised Code, and | 4181 |
|
transportation provided by a citizen of the United States holding | 4182 |
|
a certificate of public convenience and necessity issued under 49 | 4183 |
|
U.S.C. 41102; | 4184 |
| (5) The production or fabrication of tangible personal | 4203 |
|
property for a consideration for consumers who furnish either | 4204 |
|
directly or indirectly the materials used in the production of | 4205 |
|
fabrication work; and include the furnishing, preparing, or | 4206 |
|
serving for a consideration of any tangible personal property | 4207 |
|
consumed on the premises of the person furnishing, preparing, or | 4208 |
|
serving such tangible personal property. Except as provided in | 4209 |
|
section 5739.03 of the Revised Code, a construction contract | 4210 |
|
pursuant to which tangible personal property is or is to be | 4211 |
|
incorporated into a structure or improvement on and becoming a | 4212 |
|
part of real property is not a sale of such tangible personal | 4213 |
|
property. The construction contractor is the consumer of such | 4214 |
|
tangible personal property, provided that the sale and | 4215 |
installation of carpeting, the sale and installation of | 4216 |
agricultural land tile, the sale and erection or installation of | 4217 |
portable grain bins, or the provision of landscaping and lawn care | 4218 |
|
service and the transfer of property as part of such service is | 4219 |
|
never a construction contract. | 4220 |
(a) "Agricultural land tile" means fired clay or concrete | 4222 |
tile, or flexible or rigid perforated plastic pipe or tubing, | 4223 |
incorporated or to be incorporated into a subsurface drainage | 4224 |
system appurtenant to land used or to be used primarily in | 4225 |
production by farming, agriculture, horticulture, or floriculture. | 4226 |
The term does not include such materials when they are or are to | 4227 |
be incorporated into a drainage system appurtenant to a building | 4228 |
or structure even if the building or structure is used or to be | 4229 |
used in such production. | 4230 |
| (10) All transactions in which "guaranteed auto protection" | 4252 |
|
is provided whereby a person promises to pay to the consumer the | 4253 |
|
difference between the amount the consumer receives from motor | 4254 |
|
vehicle insurance and the amount the consumer owes to a person | 4255 |
|
holding title to or a lien on the consumer's motor vehicle in the | 4256 |
|
event the consumer's motor vehicle suffers a total loss under the | 4257 |
|
terms of the motor vehicle insurance policy or is stolen and not | 4258 |
|
recovered, if the protection and its price are included in the | 4259 |
|
purchase or lease agreement; | 4260 |
| (11)(a) Except as provided in division (B)(11)(b) of this | 4261 |
|
section, on and after October 1, 2009, all transactions by which | 4262 |
|
health care services are paid for, reimbursed, provided, | 4263 |
|
delivered, arranged for, or otherwise made available by a medicaid | 4264 |
|
health insuring corporation pursuant to the corporation's contract | 4265 |
|
with the state. | 4266 |
| (b) If the centers for medicare and medicaid services of the | 4267 |
|
United States department of health and human services determines | 4268 |
|
that the taxation of transactions described in division (B)(11)(a) | 4269 |
|
of this section constitutes an impermissible health care-related | 4270 |
|
tax under section 1903(w) of the "Social Security Act," 49 Stat. | 4271 |
|
620 (1935), 42 U.S.C. 1396b(w), as amended, and regulations | 4272 |
|
adopted thereunder, the director of job and family services shall | 4273 |
|
notify the tax commissioner of that determination. Beginning with | 4274 |
|
the first day of the month following that notification, the | 4275 |
|
transactions described in division (B)(11)(a) of this section are | 4276 |
|
not sales for the purposes of this chapter or Chapter 5741. of the | 4277 |
|
Revised Code. The tax commissioner shall order that the collection | 4278 |
|
of taxes under sections 5739.02, 5739.021, 5739.023, 5739.026, | 4279 |
|
5741.02, 5741.021, 5741.022, and 5741.023 of the Revised Code | 4280 |
|
shall cease for transactions occurring on or after that date. | 4281 |
| Except as provided in this section, "sale" and "selling" do | 4282 |
|
not include transfers of interest in leased property where the | 4283 |
|
original lessee and the terms of the original lease agreement | 4284 |
|
remain unchanged, or professional, insurance, or personal service | 4285 |
|
transactions that involve the transfer of tangible personal | 4286 |
|
property as an inconsequential element, for which no separate | 4287 |
|
charges are made. | 4288 |
| (C) "Vendor" means the person providing the service or by | 4289 |
|
whom the transfer effected or license given by a sale is or is to | 4290 |
|
be made or given and, for sales described in division (B)(3)(i) of | 4291 |
|
this section, the telecommunications service vendor that provides | 4292 |
|
the nine hundred telephone service; if two or more persons are | 4293 |
|
engaged in business at the same place of business under a single | 4294 |
|
trade name in which all collections on account of sales by each | 4295 |
|
are made, such persons shall constitute a single vendor. | 4296 |
| Physicians, dentists, hospitals, and veterinarians who are | 4297 |
|
engaged in selling tangible personal property as received from | 4298 |
|
others, such as eyeglasses, mouthwashes, dentifrices, or similar | 4299 |
|
articles, are vendors. Veterinarians who are engaged in | 4300 |
|
transferring to others for a consideration drugs, the dispensing | 4301 |
|
of which does not require an order of a licensed veterinarian or | 4302 |
|
physician under federal law, are vendors. | 4303 |
| (2) Physicians, dentists, hospitals, and blood banks operated | 4309 |
|
by nonprofit institutions and persons licensed to practice | 4310 |
|
veterinary medicine, surgery, and dentistry are consumers of all | 4311 |
|
tangible personal property and services purchased by them in | 4312 |
|
connection with the practice of medicine, dentistry, the rendition | 4313 |
|
of hospital or blood bank service, or the practice of veterinary | 4314 |
|
medicine, surgery, and dentistry. In addition to being consumers | 4315 |
|
of drugs administered by them or by their assistants according to | 4316 |
|
their direction, veterinarians also are consumers of drugs that | 4317 |
|
under federal law may be dispensed only by or upon the order of a | 4318 |
|
licensed veterinarian or physician, when transferred by them to | 4319 |
|
others for a consideration to provide treatment to animals as | 4320 |
|
directed by the veterinarian. | 4321 |
| (3) A person who performs a facility management, or similar | 4322 |
|
service contract for a contractee is a consumer of all tangible | 4323 |
|
personal property and services purchased for use in connection | 4324 |
|
with the performance of such contract, regardless of whether title | 4325 |
|
to any such property vests in the contractee. The purchase of such | 4326 |
|
property and services is not subject to the exception for resale | 4327 |
|
under division (E)(1) of this section. | 4328 |
| (b) In the case of a person who produces, rather than | 4334 |
|
purchases, printed matter for the purpose of distributing it or | 4335 |
|
having it distributed to the public or to a designated segment of | 4336 |
|
the public, free of charge, that person is the consumer of all | 4337 |
|
tangible personal property and services purchased for use or | 4338 |
|
consumption in the production of that printed matter. That person | 4339 |
|
is not entitled to claim exemption under division (B)(42)(f) of | 4340 |
|
section 5739.02 of the Revised Code for any material incorporated | 4341 |
|
into the printed matter or any equipment, supplies, or services | 4342 |
|
primarily used to produce the printed matter. | 4343 |
| (7) In the case of a transaction for health care services | 4359 |
|
under division (B)(11) of this section, a medicaid health insuring | 4360 |
|
corporation is the consumer of such services. The purchase of such | 4361 |
|
services by a medicaid health insuring corporation is not subject | 4362 |
|
to the exception for resale under division (E)(1) of this section | 4363 |
|
or to the exemptions provided under divisions (B)(12), (18), (19), | 4364 |
|
and (22) of section 5739.02 of the Revised Code. | 4365 |
| (H)(1)(a) "Price," except as provided in divisions (H)(2), | 4379 |
|
(3), and (4) of this section, means the total amount of | 4380 |
|
consideration, including cash, credit, property, and services, for | 4381 |
|
which tangible personal property or services are sold, leased, or | 4382 |
|
rented, valued in money, whether received in money or otherwise, | 4383 |
|
without any deduction for any of the following: | 4384 |
| (iv) On and after August 1, 2003, delivery charges. As used | 4393 |
|
in this division, "delivery charges" means charges by the vendor | 4394 |
|
for preparation and delivery to a location designated by the | 4395 |
|
consumer of tangible personal property or a service, including | 4396 |
|
transportation, shipping, postage, handling, crating, and packing. | 4397 |
| (b) "Price" includes consideration received by the vendor | 4400 |
|
from a third party, if the vendor actually receives the | 4401 |
|
consideration from a party other than the consumer, and the | 4402 |
|
consideration is directly related to a price reduction or discount | 4403 |
|
on the sale; the vendor has an obligation to pass the price | 4404 |
|
reduction or discount through to the consumer; the amount of the | 4405 |
|
consideration attributable to the sale is fixed and determinable | 4406 |
|
by the vendor at the time of the sale of the item to the consumer; | 4407 |
|
and one of the following criteria is met: | 4408 |
| (i) The consumer presents a coupon, certificate, or other | 4409 |
|
document to the vendor to claim a price reduction or discount | 4410 |
|
where the coupon, certificate, or document is authorized, | 4411 |
|
distributed, or granted by a third party with the understanding | 4412 |
|
that the third party will reimburse any vendor to whom the coupon, | 4413 |
|
certificate, or document is presented; | 4414 |
| (v) The dollar value of a gift card that is not sold by a | 4442 |
|
vendor or purchased by a consumer and that is redeemed by the | 4443 |
|
consumer in purchasing tangible personal property or services if | 4444 |
|
the vendor is not reimbursed and does not receive compensation | 4445 |
|
from a third party to cover all or part of the gift card value. | 4446 |
|
For the purposes of this division, a gift card is not sold by a | 4447 |
|
vendor or purchased by a consumer if it is distributed pursuant to | 4448 |
|
an awards, loyalty, or promotional program. Past and present | 4449 |
|
purchases of tangible personal property or services by the | 4450 |
|
consumer shall not be treated as consideration exchanged for a | 4451 |
|
gift card. | 4452 |
| (3) In the case of a sale of any watercraft or outboard motor | 4460 |
|
by a watercraft dealer licensed in accordance with section | 4461 |
|
1547.543 of the Revised Code, in which another watercraft, | 4462 |
|
watercraft and trailer, or outboard motor is accepted by the | 4463 |
|
dealer as part of the consideration received, "price" has the same | 4464 |
|
meaning as in division (H)(1) of this section, reduced by the | 4465 |
|
credit afforded the consumer by the dealer for the watercraft, | 4466 |
|
watercraft and trailer, or outboard motor received in trade. As | 4467 |
|
used in this division, "watercraft" includes an outdrive unit | 4468 |
|
attached to the watercraft. | 4469 |
| (I) "Receipts" means the total amount of the prices of the | 4474 |
|
sales of vendors, provided that the dollar value of gift cards | 4475 |
|
distributed pursuant to an awards, loyalty, or promotional | 4476 |
|
program, and cash discounts allowed and taken on sales at the time | 4477 |
|
they are consummated are not included, minus any amount deducted | 4478 |
|
as a bad debt pursuant to section 5739.121 of the Revised Code. | 4479 |
|
"Receipts" does not include the sale price of property returned or | 4480 |
|
services rejected by consumers when the full sale price and tax | 4481 |
|
are refunded either in cash or by credit. | 4482 |
| (L) "Casual sale" means a sale of an item of tangible | 4490 |
|
personal property that was obtained by the person making the sale, | 4491 |
|
through purchase or otherwise, for the person's own use and was | 4492 |
|
previously subject to any state's taxing jurisdiction on its sale | 4493 |
|
or use, and includes such items acquired for the seller's use that | 4494 |
|
are sold by an auctioneer employed directly by the person for such | 4495 |
|
purpose, provided the location of such sales is not the | 4496 |
|
auctioneer's permanent place of business. As used in this | 4497 |
|
division, "permanent place of business" includes any location | 4498 |
|
where such auctioneer has conducted more than two auctions during | 4499 |
|
the year. | 4500 |
| (M) "Hotel" means every establishment kept, used, maintained, | 4501 |
|
advertised, or held out to the public to be a place where sleeping | 4502 |
|
accommodations are offered to guests, in which five or more rooms | 4503 |
|
are used for the accommodation of such guests, whether the rooms | 4504 |
|
are in one or several structures, except as otherwise provided in | 4505 |
|
division (G) of section 5739.09 of the Revised Code. | 4506 |
| (O) "Making retail sales" means the effecting of transactions | 4510 |
|
wherein one party is obligated to pay the price and the other | 4511 |
|
party is obligated to provide a service or to transfer title to or | 4512 |
|
possession of the item sold. "Making retail sales" does not | 4513 |
|
include the preliminary acts of promoting or soliciting the retail | 4514 |
|
sales, other than the distribution of printed matter which | 4515 |
|
displays or describes and prices the item offered for sale, nor | 4516 |
|
does it include delivery of a predetermined quantity of tangible | 4517 |
|
personal property or transportation of property or personnel to or | 4518 |
|
from a place where a service is performed, regardless of whether | 4519 |
|
the vendor is a delivery vendor. | 4520 |
| (P) "Used directly in the rendition of a public utility | 4521 |
|
service" means that property that is to be incorporated into and | 4522 |
|
will become a part of the consumer's production, transmission, | 4523 |
|
transportation, or distribution system and that retains its | 4524 |
|
classification as tangible personal property after such | 4525 |
|
incorporation; fuel or power used in the production, transmission, | 4526 |
|
transportation, or distribution system; and tangible personal | 4527 |
|
property used in the repair and maintenance of the production, | 4528 |
|
transmission, transportation, or distribution system, including | 4529 |
|
only such motor vehicles as are specially designed and equipped | 4530 |
|
for such use. Tangible personal property and services used | 4531 |
|
primarily in providing highway transportation for hire are not | 4532 |
|
used directly in the rendition of a public utility service. In | 4533 |
|
this definition, "public utility" includes a citizen of the United | 4534 |
|
States holding, and required to hold, a certificate of public | 4535 |
|
convenience and necessity issued under 49 U.S.C. 41102. | 4536 |
| (S) "Manufacturing operation" means a process in which | 4543 |
|
materials are changed, converted, or transformed into a different | 4544 |
|
state or form from which they previously existed and includes | 4545 |
|
refining materials, assembling parts, and preparing raw materials | 4546 |
|
and parts by mixing, measuring, blending, or otherwise committing | 4547 |
|
such materials or parts to the manufacturing process. | 4548 |
|
"Manufacturing operation" does not include packaging. | 4549 |
| (U) "Transit authority" means a regional transit authority | 4556 |
|
created pursuant to section 306.31 of the Revised Code or a county | 4557 |
|
in which a county transit system is created pursuant to section | 4558 |
|
306.01 of the Revised Code. For the purposes of this chapter, a | 4559 |
|
transit authority must extend to at least the entire area of a | 4560 |
|
single county. A transit authority that includes territory in more | 4561 |
|
than one county must include all the area of the most populous | 4562 |
|
county that is a part of such transit authority. County population | 4563 |
|
shall be measured by the most recent census taken by the United | 4564 |
|
States census bureau. | 4565 |
| (b) "Computer services" means providing services consisting | 4584 |
|
of specifying computer hardware configurations and evaluating | 4585 |
|
technical processing characteristics, computer programming, and | 4586 |
|
training of computer programmers and operators, provided in | 4587 |
|
conjunction with and to support the sale, lease, or operation of | 4588 |
|
taxable computer equipment or systems. | 4589 |
| (a) Accounting and legal services such as advice on tax | 4609 |
|
matters, asset management, budgetary matters, quality control, | 4610 |
|
information security, and auditing and any other situation where | 4611 |
|
the service provider receives data or information and studies, | 4612 |
|
alters, analyzes, interprets, or adjusts such material; | 4613 |
| (i) Providing credit information to users of such information | 4628 |
|
by a consumer reporting agency, as defined in the "Fair Credit | 4629 |
|
Reporting Act," 84 Stat. 1114, 1129 (1970), 15 U.S.C. 1681a(f), or | 4630 |
|
as hereafter amended, including but not limited to gathering, | 4631 |
|
organizing, analyzing, recording, and furnishing such information | 4632 |
|
by any oral, written, graphic, or electronic medium; | 4633 |
| (2) A person who engages in the transportation of personal | 4646 |
|
property belonging to others for consideration over or on | 4647 |
|
highways, roadways, streets, or any similar public thoroughfare | 4648 |
|
but who could not have engaged in such transportation on December | 4649 |
|
11, 1985, unless the person was the holder of a permit or | 4650 |
|
certificate of the types described in division (Z)(1) of this | 4651 |
|
section; | 4652 |
| (AA)(1) "Telecommunications service" means the electronic | 4655 |
|
transmission, conveyance, or routing of voice, data, audio, video, | 4656 |
|
or any other information or signals to a point, or between or | 4657 |
|
among points. "Telecommunications service" includes such | 4658 |
|
transmission, conveyance, or routing in which computer processing | 4659 |
|
applications are used to act on the form, code, or protocol of the | 4660 |
|
content for purposes of transmission, conveyance, or routing | 4661 |
|
without regard to whether the service is referred to as voice-over | 4662 |
|
internet protocol service or is classified by the federal | 4663 |
|
communications commission as enhanced or value-added. | 4664 |
|
"Telecommunications service" does not include any of the | 4665 |
|
following: | 4666 |
| (g) Radio and television audio and video programming | 4679 |
|
services, regardless of the medium, including the furnishing of | 4680 |
|
transmission, conveyance, and routing of such services by the | 4681 |
|
programming service provider. Radio and television audio and video | 4682 |
|
programming services include, but are not limited to, cable | 4683 |
|
service, as defined in 47 U.S.C. 522(6), and audio and video | 4684 |
|
programming services delivered by commercial mobile radio service | 4685 |
|
providers, as defined in 47 C.F.R. 20.3; | 4686 |
| (3) "900 service" means an inbound toll telecommunications | 4715 |
|
service purchased by a subscriber that allows the subscriber's | 4716 |
|
customers to call in to the subscriber's prerecorded announcement | 4717 |
|
or live service, and which is typically marketed under the name | 4718 |
|
"900" service and any subsequent numbers designated by the federal | 4719 |
|
communications commission. "900 service" does not include the | 4720 |
|
charge for collection services provided by the seller of the | 4721 |
|
telecommunications service to the subscriber, or services or | 4722 |
|
products sold by the subscriber to the subscriber's customer. | 4723 |
| (5) "Prepaid wireless calling service" means a | 4730 |
|
telecommunications service that provides the right to utilize | 4731 |
|
mobile telecommunications service as well as other | 4732 |
|
non-telecommunications services, including the download of digital | 4733 |
|
products delivered electronically, and content and ancillary | 4734 |
|
services, that must be paid for in advance and that is sold in | 4735 |
|
predetermined units of dollars of which the number declines with | 4736 |
|
use in a known amount. | 4737 |
| (BB) "Laundry and dry cleaning services" means removing soil | 4748 |
|
or dirt from towels, linens, articles of clothing, or other fabric | 4749 |
|
items that belong to others and supplying towels, linens, articles | 4750 |
|
of clothing, or other fabric items. "Laundry and dry cleaning | 4751 |
|
services" does not include the provision of self-service | 4752 |
|
facilities for use by consumers to remove soil or dirt from | 4753 |
|
towels, linens, articles of clothing, or other fabric items. | 4754 |
| (CC) "Magazines distributed as controlled circulation | 4755 |
|
publications" means magazines containing at least twenty-four | 4756 |
|
pages, at least twenty-five per cent editorial content, issued at | 4757 |
|
regular intervals four or more times a year, and circulated | 4758 |
|
without charge to the recipient, provided that such magazines are | 4759 |
|
not owned or controlled by individuals or business concerns which | 4760 |
|
conduct such publications as an auxiliary to, and essentially for | 4761 |
|
the advancement of the main business or calling of, those who own | 4762 |
|
or control them. | 4763 |
| (DD) "Landscaping and lawn care service" means the services | 4764 |
|
of planting, seeding, sodding, removing, cutting, trimming, | 4765 |
|
pruning, mulching, aerating, applying chemicals, watering, | 4766 |
|
fertilizing, and providing similar services to establish, promote, | 4767 |
|
or control the growth of trees, shrubs, flowers, grass, ground | 4768 |
|
cover, and other flora, or otherwise maintaining a lawn or | 4769 |
|
landscape grown or maintained by the owner for ornamentation or | 4770 |
|
other nonagricultural purpose. However, "landscaping and lawn care | 4771 |
|
service" does not include the providing of such services by a | 4772 |
|
person who has less than five thousand dollars in sales of such | 4773 |
|
services during the calendar year. | 4774 |
| (EE) "Private investigation and security service" means the | 4775 |
|
performance of any activity for which the provider of such service | 4776 |
|
is required to be licensed pursuant to Chapter 4749. of the | 4777 |
|
Revised Code, or would be required to be so licensed in performing | 4778 |
|
such services in this state, and also includes the services of | 4779 |
|
conducting polygraph examinations and of monitoring or overseeing | 4780 |
|
the activities on or in, or the condition of, the consumer's home, | 4781 |
|
business, or other facility by means of electronic or similar | 4782 |
|
monitoring devices. "Private investigation and security service" | 4783 |
|
does not include special duty services provided by off-duty police | 4784 |
|
officers, deputy sheriffs, and other peace officers regularly | 4785 |
|
employed by the state or a political subdivision. | 4786 |
| (FF) "Information services" means providing conversation, | 4787 |
|
giving consultation or advice, playing or making a voice or other | 4788 |
|
recording, making or keeping a record of the number of callers, | 4789 |
|
and any other service provided to a consumer by means of a nine | 4790 |
|
hundred telephone call, except when the nine hundred telephone | 4791 |
|
call is the means by which the consumer makes a contribution to a | 4792 |
|
recognized charity. | 4793 |
| (GG) "Research and development" means designing, creating, or | 4794 |
|
formulating new or enhanced products, equipment, or manufacturing | 4795 |
|
processes, and also means conducting scientific or technological | 4796 |
|
inquiry and experimentation in the physical sciences with the goal | 4797 |
|
of increasing scientific knowledge which may reveal the bases for | 4798 |
|
new or enhanced products, equipment, or manufacturing processes. | 4799 |
| (HH) "Qualified research and development equipment" means | 4800 |
|
capitalized tangible personal property, and leased personal | 4801 |
|
property that would be capitalized if purchased, used by a person | 4802 |
|
primarily to perform research and development. Tangible personal | 4803 |
|
property primarily used in testing, as defined in division (A)(4) | 4804 |
|
of section 5739.011 of the Revised Code, or used for recording or | 4805 |
|
storing test results, is not qualified research and development | 4806 |
|
equipment unless such property is primarily used by the consumer | 4807 |
|
in testing the product, equipment, or manufacturing process being | 4808 |
|
created, designed, or formulated by the consumer in the research | 4809 |
|
and development activity or in recording or storing such test | 4810 |
|
results. | 4811 |
| (II) "Building maintenance and janitorial service" means | 4812 |
|
cleaning the interior or exterior of a building and any tangible | 4813 |
|
personal property located therein or thereon, including any | 4814 |
|
services incidental to such cleaning for which no separate charge | 4815 |
|
is made. However, "building maintenance and janitorial service" | 4816 |
|
does not include the providing of such service by a person who has | 4817 |
|
less than five thousand dollars in sales of such service during | 4818 |
|
the calendar year. | 4819 |
| (JJ) "Employment service" means providing or supplying | 4820 |
|
personnel, on a temporary or long-term basis, to perform work or | 4821 |
|
labor under the supervision or control of another, when the | 4822 |
|
personnel so provided or supplied receive their wages, salary, or | 4823 |
|
other compensation from the provider or supplier of the employment | 4824 |
|
service or from a third party that provided or supplied the | 4825 |
|
personnel to the provider or supplier. "Employment service" does | 4826 |
|
not include: | 4827 |
| (MM) "Physical fitness facility service" means all | 4851 |
|
transactions by which a membership is granted, maintained, or | 4852 |
|
renewed, including initiation fees, membership dues, renewal fees, | 4853 |
|
monthly minimum fees, and other similar fees and dues, by a | 4854 |
|
physical fitness facility such as an athletic club, health spa, or | 4855 |
|
gymnasium, which entitles the member to use the facility for | 4856 |
|
physical exercise. | 4857 |
| (NN) "Recreation and sports club service" means all | 4858 |
|
transactions by which a membership is granted, maintained, or | 4859 |
|
renewed, including initiation fees, membership dues, renewal fees, | 4860 |
|
monthly minimum fees, and other similar fees and dues, by a | 4861 |
|
recreation and sports club, which entitles the member to use the | 4862 |
|
facilities of the organization. "Recreation and sports club" means | 4863 |
|
an organization that has ownership of, or controls or leases on a | 4864 |
|
continuing, long-term basis, the facilities used by its members | 4865 |
|
and includes an aviation club, gun or shooting club, yacht club, | 4866 |
|
card club, swimming club, tennis club, golf club, country club, | 4867 |
|
riding club, amateur sports club, or similar organization. | 4868 |
| (OO) "Livestock" means farm animals commonly raised for food, | 4869 |
|
food production, or other agricultural purposes, including, but | 4870 |
|
not limited to, cattle, sheep, goats, swine, poultry, and captive | 4871 |
|
deer. "Livestock" does not include invertebrates, amphibians, | 4872 |
|
reptiles, domestic pets, animals for use in laboratories or for | 4873 |
|
exhibition, or other animals not commonly raised for food or food | 4874 |
|
production. | 4875 |
| (SS) "Newspaper" means an unbound publication bearing a title | 4889 |
|
or name that is regularly published, at least as frequently as | 4890 |
|
biweekly, and distributed from a fixed place of business to the | 4891 |
|
public in a specific geographic area, and that contains a | 4892 |
|
substantial amount of news matter of international, national, or | 4893 |
|
local events of interest to the general public. | 4894 |
(TT) "Professional racing team" means a person that employs | 4895 |
at least twenty full-time employees for the purpose of conducting | 4896 |
a motor vehicle racing business for profit. The person must | 4897 |
conduct the business with the purpose of racing one or more motor | 4898 |
racing vehicles in at least ten competitive professional racing | 4899 |
events each year that comprise all or part of a motor racing | 4900 |
series sanctioned by one or more motor racing sanctioning | 4901 |
organizations. A "motor racing vehicle" means a vehicle for which | 4902 |
the chassis, engine, and parts are designed exclusively for motor | 4903 |
racing, and does not include a stock or production model vehicle | 4904 |
that may be modified for use in racing. For the purposes of this | 4905 |
division: | 4906 |
(2) "Full-time employee" means an individual who is employed | 4912 |
for consideration for thirty-five or more hours a week, or who | 4913 |
renders any other standard of service generally accepted by custom | 4914 |
or specified by contract as full-time employment"Managed care | 4915 |
|
premium" means any premium, capitation, or other payment a | 4916 |
|
medicaid health insuring corporation receives for providing or | 4917 |
|
arranging for the provision of health care services to its members | 4918 |
|
or enrollees residing in this state. | 4919 |
| (UU)(1) "Lease" or "rental" means any transfer of the | 4920 |
|
possession or control of tangible personal property for a fixed or | 4921 |
|
indefinite term, for consideration. "Lease" or "rental" includes | 4922 |
|
future options to purchase or extend, and agreements described in | 4923 |
|
26 U.S.C. 7701(h)(1) covering motor vehicles and trailers where | 4924 |
|
the amount of consideration may be increased or decreased by | 4925 |
|
reference to the amount realized upon the sale or disposition of | 4926 |
|
the property. "Lease" or "rental" does not include: | 4927 |
| (VV) "Mobile telecommunications service" has the same meaning | 4950 |
|
as in the "Mobile Telecommunications Sourcing Act," Pub. L. No. | 4951 |
|
106-252, 114 Stat. 631 (2000), 4 U.S.C.A. 124(7), as amended, and, | 4952 |
|
on and after August 1, 2003, includes related fees and ancillary | 4953 |
|
services, including universal service fees, detailed billing | 4954 |
|
service, directory assistance, service initiation, voice mail | 4955 |
|
service, and vertical services, such as caller ID and three-way | 4956 |
|
calling. | 4957 |
| (XX) "Satellite broadcasting service" means the distribution | 4960 |
|
or broadcasting of programming or services by satellite directly | 4961 |
|
to the subscriber's receiving equipment without the use of ground | 4962 |
|
receiving or distribution equipment, except the subscriber's | 4963 |
|
receiving equipment or equipment used in the uplink process to the | 4964 |
|
satellite, and includes all service and rental charges, premium | 4965 |
|
channels or other special services, installation and repair | 4966 |
|
service charges, and any other charges having any connection with | 4967 |
|
the provision of the satellite broadcasting service. | 4968 |
| (YY) "Tangible personal property" means personal property | 4969 |
|
that can be seen, weighed, measured, felt, or touched, or that is | 4970 |
|
in any other manner perceptible to the senses. For purposes of | 4971 |
|
this chapter and Chapter 5741. of the Revised Code, "tangible | 4972 |
|
personal property" includes motor vehicles, electricity, water, | 4973 |
|
gas, steam, and prewritten computer software. | 4974 |
| (ZZ) "Direct mail" means printed material delivered or | 4975 |
|
distributed by United States mail or other delivery service to a | 4976 |
|
mass audience or to addressees on a mailing list provided by the | 4977 |
|
consumer or at the direction of the consumer when the cost of the | 4978 |
|
items are not billed directly to the recipients. "Direct mail" | 4979 |
|
includes tangible personal property supplied directly or | 4980 |
|
indirectly by the consumer to the direct mail vendor for inclusion | 4981 |
|
in the package containing the printed material. "Direct mail" does | 4982 |
|
not include multiple items of printed material delivered to a | 4983 |
|
single address. | 4984 |
| (DDD) "Prewritten computer software" means computer software, | 4994 |
|
including prewritten upgrades, that is not designed and developed | 4995 |
|
by the author or other creator to the specifications of a specific | 4996 |
|
purchaser. The combining of two or more prewritten computer | 4997 |
|
software programs or prewritten portions thereof does not cause | 4998 |
|
the combination to be other than prewritten computer software. | 4999 |
|
"Prewritten computer software" includes software designed and | 5000 |
|
developed by the author or other creator to the specifications of | 5001 |
|
a specific purchaser when it is sold to a person other than the | 5002 |
|
purchaser. If a person modifies or enhances computer software of | 5003 |
|
which the person is not the author or creator, the person shall be | 5004 |
|
deemed to be the author or creator only of such person's | 5005 |
|
modifications or enhancements. Prewritten computer software or a | 5006 |
|
prewritten portion thereof that is modified or enhanced to any | 5007 |
|
degree, where such modification or enhancement is designed and | 5008 |
|
developed to the specifications of a specific purchaser, remains | 5009 |
|
prewritten computer software; provided, however, that where there | 5010 |
|
is a reasonable, separately stated charge or an invoice or other | 5011 |
|
statement of the price given to the purchaser for the modification | 5012 |
|
or enhancement, the modification or enhancement shall not | 5013 |
|
constitute prewritten computer software. | 5014 |
| (EEE)(1) "Food" means substances, whether in liquid, | 5015 |
|
concentrated, solid, frozen, dried, or dehydrated form, that are | 5016 |
|
sold for ingestion or chewing by humans and are consumed for their | 5017 |
|
taste or nutritional value. "Food" does not include alcoholic | 5018 |
|
beverages, dietary supplements, soft drinks, or tobacco. | 5019 |
| (b) "Dietary supplements" means any product, other than | 5024 |
|
tobacco, that is intended to supplement the diet and that is | 5025 |
|
intended for ingestion in tablet, capsule, powder, softgel, | 5026 |
|
gelcap, or liquid form, or, if not intended for ingestion in such | 5027 |
|
a form, is not represented as conventional food for use as a sole | 5028 |
|
item of a meal or of the diet; that is required to be labeled as a | 5029 |
|
dietary supplement, identifiable by the "supplement facts" box | 5030 |
|
found on the label, as required by 21 C.F.R. 101.36; and that | 5031 |
|
contains one or more of the following dietary ingredients: | 5032 |
| (FFF) "Drug" means a compound, substance, or preparation, and | 5049 |
|
any component of a compound, substance, or preparation, other than | 5050 |
|
food, dietary supplements, or alcoholic beverages that is | 5051 |
|
recognized in the official United States pharmacopoeia, official | 5052 |
|
homeopathic pharmacopoeia of the United States, or official | 5053 |
|
national formulary, and supplements to them; is intended for use | 5054 |
|
in the diagnosis, cure, mitigation, treatment, or prevention of | 5055 |
|
disease; or is intended to affect the structure or any function of | 5056 |
|
the body. | 5057 |
| (HHH) "Durable medical equipment" means equipment, including | 5062 |
|
repair and replacement parts for such equipment, that can | 5063 |
|
withstand repeated use, is primarily and customarily used to serve | 5064 |
|
a medical purpose, generally is not useful to a person in the | 5065 |
|
absence of illness or injury, and is not worn in or on the body. | 5066 |
|
"Durable medical equipment" does not include mobility enhancing | 5067 |
|
equipment. | 5068 |
| (III) "Mobility enhancing equipment" means equipment, | 5069 |
|
including repair and replacement parts for such equipment, that is | 5070 |
|
primarily and customarily used to provide or increase the ability | 5071 |
|
to move from one place to another and is appropriate for use | 5072 |
|
either in a home or a motor vehicle, that is not generally used by | 5073 |
|
persons with normal mobility, and that does not include any motor | 5074 |
|
vehicle or equipment on a motor vehicle normally provided by a | 5075 |
|
motor vehicle manufacturer. "Mobility enhancing equipment" does | 5076 |
|
not include durable medical equipment. | 5077 |
| (JJJ) "Prosthetic device" means a replacement, corrective, or | 5078 |
|
supportive device, including repair and replacement parts for the | 5079 |
|
device, worn on or in the human body to artificially replace a | 5080 |
|
missing portion of the body, prevent or correct physical deformity | 5081 |
|
or malfunction, or support a weak or deformed portion of the body. | 5082 |
|
As used in this division, "prosthetic device" does not include | 5083 |
|
corrective eyeglasses, contact lenses, or dental prosthesis. | 5084 |
(d) "Management services" means administrative and aviation | 5117 |
support services furnished under a fractional aircraft ownership | 5118 |
program in accordance with a management services agreement under | 5119 |
division (KKK)(1)(e) of this section, and offered by the program | 5120 |
manager to the fractional owners, including, at a minimum, the | 5121 |
establishment and implementation of safety guidelines; the | 5122 |
coordination of the scheduling of the program aircraft and crews; | 5123 |
program aircraft maintenance; program aircraft insurance; crew | 5124 |
training for crews employed, furnished, or contracted by the | 5125 |
program manager or the fractional owner; the satisfaction of | 5126 |
record-keeping requirements; and the development and use of an | 5127 |
operations manual and a maintenance manual for the fractional | 5128 |
aircraft ownership program. | 5129 |
| (LLL) "Electronic publishing" means providing access to one | 5136 |
|
or more of the following primarily for business customers, | 5137 |
|
including the federal government or a state government or a | 5138 |
|
political subdivision thereof, to conduct research: news; | 5139 |
|
business, financial, legal, consumer, or credit materials; | 5140 |
|
editorials, columns, reader commentary, or features; photos or | 5141 |
|
images; archival or research material; legal notices, identity | 5142 |
|
verification, or public records; scientific, educational, | 5143 |
|
instructional, technical, professional, trade, or other literary | 5144 |
|
materials; or other similar information which has been gathered | 5145 |
|
and made available by the provider to the consumer in an | 5146 |
|
electronic format. Providing electronic publishing includes the | 5147 |
|
functions necessary for the acquisition, formatting, editing, | 5148 |
|
storage, and dissemination of data or information that is the | 5149 |
|
subject of a sale. | 5150 |
| Sec. 5739.02. For the purpose of providing revenue with | 5167 |
|
which to meet the needs of the state, for the use of the general | 5168 |
|
revenue fund of the state, for the purpose of securing a thorough | 5169 |
|
and efficient system of common schools throughout the state, for | 5170 |
|
the purpose of affording revenues, in addition to those from | 5171 |
|
general property taxes, permitted under constitutional | 5172 |
|
limitations, and from other sources, for the support of local | 5173 |
|
governmental functions, and for the purpose of reimbursing the | 5174 |
|
state for the expense of administering this chapter, an excise tax | 5175 |
|
is hereby levied on each retail sale made in this state. | 5176 |
| (2) In the case of the lease or rental, with a fixed term of | 5182 |
|
more than thirty days or an indefinite term with a minimum period | 5183 |
|
of more than thirty days, of any motor vehicles designed by the | 5184 |
|
manufacturer to carry a load of not more than one ton, watercraft, | 5185 |
|
outboard motor, or aircraft, or of any tangible personal property, | 5186 |
|
other than motor vehicles designed by the manufacturer to carry a | 5187 |
|
load of more than one ton, to be used by the lessee or renter | 5188 |
|
primarily for business purposes, the tax shall be collected by the | 5189 |
|
vendor at the time the lease or rental is consummated and shall be | 5190 |
|
calculated by the vendor on the basis of the total amount to be | 5191 |
|
paid by the lessee or renter under the lease agreement. If the | 5192 |
|
total amount of the consideration for the lease or rental includes | 5193 |
|
amounts that are not calculated at the time the lease or rental is | 5194 |
|
executed, the tax shall be calculated and collected by the vendor | 5195 |
|
at the time such amounts are billed to the lessee or renter. In | 5196 |
|
the case of an open-end lease or rental, the tax shall be | 5197 |
|
calculated by the vendor on the basis of the total amount to be | 5198 |
|
paid during the initial fixed term of the lease or rental, and for | 5199 |
|
each subsequent renewal period as it comes due. As used in this | 5200 |
|
division, "motor vehicle" has the same meaning as in section | 5201 |
|
4501.01 of the Revised Code, and "watercraft" includes an outdrive | 5202 |
|
unit attached to the watercraft. | 5203 |
| A lease with a renewal clause and a termination penalty or | 5204 |
|
similar provision that applies if the renewal clause is not | 5205 |
|
exercised is presumed to be a sham transaction. In such a case, | 5206 |
|
the tax shall be calculated and paid on the basis of the entire | 5207 |
|
length of the lease period, including any renewal periods, until | 5208 |
|
the termination penalty or similar provision no longer applies. | 5209 |
|
The taxpayer shall bear the burden, by a preponderance of the | 5210 |
|
evidence, that the transaction or series of transactions is not a | 5211 |
|
sham transaction. | 5212 |
