Monday, April 14, 2014

Ohio Dog Owners Must Follow State Laws


Many laws in Ohio deal with dog ownership and treatment. This article addresses the most basic laws applying to pet dogs.

Q:       I’m thinking of getting a dog for a family pet. Does Ohio have any dog laws I should know about?
A:        Yes. There are both state statutes and local ordinances. The state statutes define how a dog is determined to be dangerous, and what you can and cannot do with a dog. Local ordinances may ban certain breeds of dogs or restrict the number of dogs you can own in your private home. Local ordinances may also require certain immunizations for your dog. Some local ordinances also include leash laws. Ohio law, however, does not permit pet dogs to run loose. They must be under someone’s control, and if a dog is in heat, she must be on a leash.

Q:       Must I have a license for my pet dog?
A:        Yes. Every dog over three months of age must be registered with the county auditor by the 31st of every January. If your dog is not registered by January 31, your fee will double. Depending on local ordinances, you may have to pay a higher fee if the dog is not spayed or neutered. Also, your dog must wear a tag issued by the county auditor. If the dog warden sees a dog without a collar or tag on—even in your yard—the warden can seize the dog.

Q:       Does Ohio law prevent anyone from owning a dog?
A:        Yes. Ohio law now says that anyone who has been convicted of a felony since December 1, 2013, cannot own certain dogs. Such a felon cannot own or live in a residence with an unsprayed or unneutered dog, or any dog that has been deemed to be dangerous, until the felon has been released from all sanctions for a period of three years.  Even after that three-year waiting period, a felon who owns or lives with a dog must have the dog microchipped for permanent identification. This law does not pertain to any dog owned by a felon before December 1, 2013, or to people while they are in rehabilitation or correctional facilities.

Q:       Is there anything legal I have to do if I sell or give away a dog?
A:        Yes. If you transfer of ownership of any dog, you must give the buyer a signed transfer of ownership certificate. The certificate must contain the dog’s registration number, your name, and a brief description of the dog. You can get blank forms of this certificate from the county auditor, and you will have to pay a $5 fee when you record the form with the auditor. Before you transfer ownership or possession of any dog, you must give the dog’s prospective new owner, upon request, written notice about the dog’s behavior and propensities.

Q:       Does Ohio law consider dogs and other animals property?
A:        Yes. Ohio law considers pets to be personal property, except that the law does not allow you to abandon or throw away a pet as you might a piece of furniture. And while you are free to keep a piece of furniture out in the rain until it is ruined, there are laws in Ohio that protect dogs from inhumane neglect or abuse. 

Q:       Since my dog is my personal property, can I do anything I want with my dog?
A:        No. You cannot (or allow anyone else to) torture, torment, needlessly mutilate or maim, cruelly beat, poison, needlessly kill or commit an act of cruelty against a dog (or any other companion animal). Also, you cannot neglect your dog or cause unnecessary pain, or allow the dog’s pain to continue when there is a reasonable remedy or relief; neither can you needlessly kill your dog. Further, you cannot deprive your dog of necessary food or confine the dog without providing adequate and wholesome food and water, and you cannot impound or confine your dog without providing access to shelter from heat, cold, wind, rain, snow or excessive direct sunlight.

Q:       What if my dog hurts someone or someone’s property? Can I be held liable for damage or injuries?
A:        Yes. Damage caused by your dog is a strict liability offense. This means that, as long as your dog wasn't attacked, you will be responsible for any damage your dog may do. Therefore, you must properly restrain and control your pet dog at all times. Be sure the dog will not be able to escape from your property or wherever you are keeping it.         

This “Law You Can Use” consumer legal information column was provided by the Ohio State Bar Association. It was prepared by attorney Michelle L. Baumeister.  Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek the advice of a licensed attorney.

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Monday, April 7, 2014

Ohio Businesses Must Comply with Ohio EPA Air Pollution Standards


Q:       I plan to buy a small manufacturing business in Ohio. Do I need an air permit?
A:        If you will be using manufacturing equipment, your business must comply with certain environmental regulations. In particular, air pollution regulations are closely monitored and enforced, so you should understand these regulations and obtain any appropriate permits. Ohio EPA may be willing to guide you in this process, but if you aren’t sure about your permitting status, consult an attorney.

Q:       When does Ohio require air permits?
A:        Ohio usually requires a “permit to install and operate” (PTIO) before air pollution sources are installed. An air pollution “source” may be anything from an industrial furnace stack to a paint booth, or even a gravel roadway that creates dust. 

Q:       Are there any exceptions to air permitting requirements?
A:        Yes. There is an exception for very small (“de minimis”) sources of air pollution that have the potential to emit no more than 10 pounds of any individual pollutant in a 24-hour period of continuous operation. This exception also applies to sources that would emit more than 10 pounds if operated continuously for 24 hours, but never do so in normal operations, but the operator must keep records showing that the 10-pound threshold is never exceeded.

Q:       Our pollution sources are small, but may not qualify under the “de minimis” source requirements. Might any other exceptions apply to us?
A:        Yes. If you don’t think you are a “de minimis” source, you still may be on Ohio EPA’s list of 45 types of sources that can receive “permanent exemptions” from air permitting. Some common sources that do not require permits include certain small boilers, tumblers, bakery ovens, laboratory equipment, small storage tanks and inkjet printers.
            Also, Ohio EPA has created “permits by rule” that exempt other types of small sources from having to obtain a PTIO, so long as they follow some basic notification and recordkeeping requirements. Such sources include certain types of auto body shops, gas stations, boilers/heaters fired by natural gas, printing facilities, emergency generators, compressors and water pumps, resin compression/injection molding, crushing/screening operations and soil remediation activities. Rather than getting permits for these sources, your company must follow certain specific rules.
            Ohio EPA also provides less complicated “general permit” PTIOs for other small sources. Your business must still need submit an application and obtain a permit, but the permit doesn’t take long to get, and is essentially already written. Sources requiring general air permits include certain aggregate processing, certain boilers, diesel engines, digester operations, drycleaning operations, mineral extraction, metal parts painting lines, ready-mix concrete batch plants, storage piles, and paved and unpaved roadways and parking areas.

Q:       What if our business doesn’t fall into any of the “small source” categories?
A:        If your facility has relatively minor sources of air pollution, but does not fall into one of the above categories, you must get a standard PTIO from Ohio EPA. You can get a form through the Ohio EPA’s website (www.epa.ohio.gov), and you can probably get assistance with your application from the Ohio EPA. If your company has larger sources of air pollution, you may need to get a federal permit under the New Source Review and Title V permitting programs. (Visit www.epa.gov/region05/air/permits/index.html for more information.)

Q:       What should I do if an Ohio EPA inspector visits my facility?
A:        You should prepare for unannounced inspections if you have environmental permits. To properly prepare, designate someone from your facility who understands the company’s operations and environmental issues to accompany the inspectors, explain the facility’s layout and operation, and to serve as the Ohio EPA contact person.
            When the inspectors arrive, you should find out: 1) contact information and title for each inspector; 2) what prompted the investigation (whether a complaint, a specific event or a routine inspection); and 3) what procedures will be followed during the inspection (areas to be inspected, records to be reviewed, samples to be taken). If there is any indication that the inspection may be part of a criminal investigation, contact legal counsel immediately.
            During the inspection, stay with the inspectors and take notes of the inspector actions and questions. If samples are taken, note the collection process and get split samples. If an inspector takes photos, do the same. Answer questions fully, but do not speculate or volunteer information.
            After the inspection, ask for an exit interview. Try to learn if the inspector observed any deficiencies requiring follow up. Finally, document all inspection events and conversations in a written report, and identify all documents shared with the inspectors. Following these steps will minimize your risk of liability and help you respond to any further agency action.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Cincinnati attorney Thaddeus H. Driscoll of Frost Brown Todd LLC. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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Monday, March 31, 2014

Ohio Law Addresses Oil and Gas Well Waste


Q:       When someone installs an oil and gas well on my property, is there any waste? If so, what kind?
            A:        Yes. Drilling well borings for oil and gas production creates a variety of wastes and byproducts including drill cuttings, drilling mud, pipe scale and brine. Drill cuttings are generally pulverized rock returned to the surface during the drilling of the well boring. Drilling mud is typically a semi-solid dirt/fluid mixture designed to keep the boring open during drilling. Pipe scale is a buildup caused by drilling that sticks to boring surfaces and drilling equipment. Brine is basically salty water produced from the rock layers and combined with some drilling fluids. Brine is generated during the well-drilling or fracking process, and also during the cleaning and development process used to prepare for oil and gas production. 
                        These various types of waste or byproducts may contain oil-based substances and low-level, naturally occurring radioactive materials. Each waste or byproduct generated is handled according to its nature and type.

            Q:       What regulatory controls address oil and gas well wastes in Ohio?
            A:        In July 2013, House Bill 59 amended several sections of Ohio law to provide greater assurance that oil and gas well waste is being managed safely. These amendments give the Ohio Department of Health, the Ohio Department of Natural Resources (ODNR) and the Ohio Environmental Protection Agency (Ohio EPA) greater oversight and coordination over oil and gas well management, and revise Ohio’s solid waste statute for “Technologically Enhanced Naturally Occurring Radioactive Material,” as explained below.
            As of 2014, a person is prohibited from storing, recycling, treating, processing or disposing of brine or other wastes associated with the exploration, development, well stimulation, production operations or plugging of oil and gas resources unless the Chief of the ODNR, Division of Oil & Gas Resources Management, gives that person an order or permit. Laws in the Ohio Revised Code (Chapter 1509) govern disposal of brine waste. Non-brine waste material that is removed from the drilling site must be disposed of according to Ohio solid waste law. 

Q:       What does the law say about how oil and gas well wastes must be handled?
            A:        Generally, drill cuttings may be managed on the drill site. Drill cuttings and scale that come into contact with refined oil-based substances or other contaminants are generally disposed off-site; the Ohio Environmental Protection Agency regulates these substances as solid waste. Drilling muds typically are recycled, since they can be useful for subsequent borings. The ODNR Division of Oil and Gas Resources Management regulates brine transport and disposal. The Division also permits and oversees underground injection wells for disposal of waste fluids including brine.
                        Drillers may also need an Ohio EPA air permit for installations or activities that emit air pollutants.
           
            Q:       Can oil and gas well development cause radioactive materials to move within the environment?
            A:        Yes. Soils and muds produced during oil and gas well development may emit radionuclides. Naturally Occurring Radioactive Material (NORM) consists of undisturbed materials that exist in the environment and emit low levels of naturally-occurring radiation. An example of NORM is the radon gas collecting in home basements. NORM is exempted from regulation.
            However, when NORM radionuclides are modified, either naturally or through various technologies, they may become concentrated. When this happens, they turn into Technologically Enhanced Naturally Occurring Radioactive Material (TENORM). The Ohio Department of Health, Bureau of Radiation Protection, has primary regulatory authority over TENORM. In addition to oil and gas wastes, examples of TENORM wastes include wastes derived from the metal mining/processing industry, and sludge from water treatment plants­­ and from geothermal energy production. TENORM is also found in phosphate fertilizers.

Q:       What does Ohio law say about handling TENORM wastes?
A:        Ohio has some of the most stringent TENORM rules in the country. TENORM wastes cannot be disposed of at the drill pad. Oil and gas drilling solids that are also TENORM must be tested for radium concentrations before leaving the drill pad. TENORM wastes with concentrations of less than 5 pico-curies per gram above a “natural background” (about 79.4 millirem) may be disposed of at licensed solid waste landfills. Wastes with elevated concentrations of TENORM must be sent to a low-level radioactive waste disposal facility. If brine contains TENORM, brine disposal laws govern disposal. In Ohio, this almost always means that the brine is injected into a deep well for disposal.
  
This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Columbus attorney Brian A. Ball, former practicing geologist, of the Ohio Attorney General’s Environmental Enforcement Section. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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Monday, March 24, 2014

Horse Owners May Be Liable for Equine Trespass


Q:       I board my ten-year-old daughter’s horse, Roamer, at a private boarding stable. We visit the horse for my daughter to ride and take lessons, but the stable owners handle the horse’s care and turn him out for free exercise. If Roamer gets out of the pasture and damages property belonging to the stable owner’s neighbor, could I be held responsible?
A:        If the horse gets loose and runs down the highway or onto neighboring property, this is called running “at large” under Ohio law, which says,
“No person, who is the owner or keeper of horses, mules, cattle, bison, sheep, goats, swine, llamas, alpacas, or geese, shall permit them to run at large in the public road, highway, street, lane, or alley, or upon unenclosed land, or cause the animals to be herded, kept, or detained for the purpose of grazing on premises other than those owned or lawfully occupied by the owner or keeper of the animals.”
            According to Ohio law, “owner” means the person who lawfully owns the horse. “Keeper” could refer to the boarding stable or any other such place that has custody and control of the horse. In your case, you are the owner and the boarding stable likely would be considered a keeper of Roamer. If Roamer gets loose at the stables and runs onto the neighbor’s property, he would be “running at large,” which would be a violation of Ohio law.
            This means that the neighboring property owner can sue you (Roamer’s owner) as well as the boarding stable (his keeper) for any property damage. However, the neighbor will have to prove that you were negligent. Since you are only at the stable when your daughter rides Roamer and you have no control over when and where Roamer is turned out at pasture, or the handling of Roamer during turn-out, or the condition of the pasture fence or gate, it will be difficult for the neighbor to prove you were negligent.

Q:       Roamer’s former owner told us when we bought him that he is a Houdini when he is outside and that he often got out of their pasture. Is this something I should tell the boarding stable where we keep him now?
A:        Yes. You have a duty to let the stable owner or manager know that Roamer needs extra care when he is turned out so that he does not get loose. To avoid being negligent, you must exercise due care. If Roamer gets loose again, it can be argued you knew or should have known this might happen.

Q:        Could I be charged with a criminal offense if Roamer gets loose and causes damage?
A:        Only if you are deemed to be “reckless.” Ohio law states that “whoever recklessly violates” the at-large law “is guilty of a 4th degree misdemeanor.” To be reckless is more than being negligent. Reckless conduct means something was intentionally done or something that should have been done was ignored. The facts of Roamer’s escape would have to show that you intentionally allowed Roamer to run at large or personally knew of conditions that would allow him to get loose and you ignored them. The maximum potential penalty for a 4th degree misdemeanor is 30 days in jail and a fine of $250, plus any property damages caused by your horse. For negligence, you can only be held liable for money damages in a civil lawsuit.

Q:       Can I get insurance for any damage Roamer might cause?
A:        Yes. Generally you can have coverage for this type of liability under your homeowner’s policy, but do not just assume you have coverage. Contact your insurance agent and make sure your policy covers any damages Roamer might cause to property and to third parties. This coverage should be broad, and not just for an “at large” event. You should consider getting “individual horse owner’s liability coverage,” and it should include coverage for legal defense costs as well as damages to persons and property. If your homeowner’s insurance does not cover this or if you feel the coverage is not adequate, there are insurance companies in Ohio that provide specific equine policies. Also, people who operate boarding stables, give lessons or conduct training should have commercial equine insurance coverage, so it would also be wise to check with your boarding stable to see if the owners have this coverage.

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Linda C. Ashar, Attorney at Law, Vermilion. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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Monday, March 17, 2014

Legal Aspects of Assisted Reproduction Technology


Q:       I’ve seen a lot of stories in the news lately about surrogacy and gamete donation technology cases. The outcomes of these cases seem inconsistent. Can you explain?
A:        Laws concerning family formation are written, interpreted, and enforced on a state-by-state basis.  Some states have no statutory laws that are precisely on point, so the courts are forced to adapt other provisions of the law to decide particular cases. 
            These situations can be made even more complex when the parties live in different states. Many people are involved: the intended mother, the intended father, the biological mother, the biological father, the gestational carrier, the gestational carrier’s husband, the medical personnel and, of course, the child. Balancing the rights of all these individuals can be difficult and complex. 
            The intended parents have a right to procreate and a right to privacy, but the child’s rights are less clear. You are right; the outcomes of these cases can vary.

Q:       How, then, can all of the parties to an assisted reproductive technology situation make informed decisions and plans?
A:        To make sure the rights of everyone involved are considered and potential problems are anticipated and addressed, participants often make written agreements in the form of contracts, waivers and consents. Ohio statutory law specifically authorizes some of these, and courts have recognized others and used them to determine the intent of the parties involved. These documents should be carefully drafted to suit the facts of the particular situation. If you are a party to an ART situation, an attorney can help you or can refer you to another attorney who will be able to help you. Documents addressing ART situations may be available online, but they may not be consistent with Ohio law or with your individual circumstances. Using a legal contract you find through the Internet can be like using someone else’s discarded plaster cast when you break your arm; it may do more harm than good.

Q:       We are considering using ARTs so we can have a child, but are worried about handling the expense. Doesn’t the cost of such legal services increase the costs of ARTS?
A:        It is true that ARTS can be expensive. The procedures involve time-consuming and complex lab and medical steps. It is important to remember, however, that the goal of the process is for a child to become part of a family in every way. To accomplish this goal, legal steps must be taken when using ARTs to gain a child. This legal work is part of the surrogacy process. Obtaining appropriate legal documents will allow you to parent the child and to be acknowledged as the child’s parent. If you shortchange the legal process, you could face years of litigation and heartbreak. In a nutshell, the child is not yours until the law says so.

Completing the proper legal work will allow you to avoid:
·       contested arguments with the donors or gestational carriers over custody of the child;
·       lawsuits for damages if the gestational carrier becomes disabled or dies as a result of the ART process;
·       problems over who has authority to consent to your child’s medical treatment;
·       struggles to register your child for school, to enroll him on your health insurance, and to obtain a passport.

This “Law You Can Use” consumer legal information article was provided by the Ohio State Bar Association. It was prepared by Columbus attorneys Susan Garner Eisenman, chair of Ohio’s Adoption Law Roundtable and ARTS and AAAA fellow and Robin B. Baird, who represents medical providers of ARTS. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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Monday, March 10, 2014

Will You Know A Condominium When You See One?


Millions of families throughout much of the world now live in condominiums, and, as Americans pull out of recession, we likely will see this unique form of real property ownership continue to grow. The legal “device” known as a “condominium” provides a multitude of real property ownership opportunities.   

Q:      
What, exactly, is a condominium?
A:        You cannot recognize a condominium or a condominium unit by sight, touch, smell or even use.  For example, a “condominium” might appear to be a duplex, a single family home development, an attached row, ranch, or town home, an apartment building or complex, an industrial park, a commercial office building or even an entire community. Condominiums may include residential housing, shopping centers, churches, schools, stables and even jails. You can’t fully tell what a condominium is by its Latin meaning (“joint dominion”) but aspects of that definition are key to condominium ownership and living. Technically, a condominium is any developed real property that has been “subjected to” a state’s statutes (written laws) allowing condominium development. 

Q:       How do the condominium statutes work?
A:        Condominium statutes vary from state to state. In Ohio, they allow a developer who meets certain requirements and takes certain legal steps to lawfully divide a piece of (usually already developed) real property into parcels of space that can be separately owned. Each parcel of space has all of the essential legal attributes of any other separate parcel of real property. This means that each can be separately owned, conveyed, taxed, mortgaged, liened, bequeathed and inherited. For people who want to own their own property, have their own mortgage(s), (hopefully) enjoy the benefit of increasing property values and other attributes of real property ownership, condominium units expand real property ownership options.

Q:       Can space be considered real property?    
A:        The “space as real property” concept is not part of our real property law heritage, which was derived from English property law. In fact, without the condominium statutes, the space constituting a tenth floor apartment, for example, could not be treated as a separate piece of real property. Ohio’s “enabling” condominium statutes, however, allow such space to become real property.     

Q:       What happens to the part of the property that is not included in the “space”?
A:        When a piece of real property becomes a condominium by using a state’s condominium statutes, the property is divided generally into “units” and “common elements.” In most condominiums a unit is simply a cubicle of space that may include various items, such as floors, ceilings, windows and doors, which a state statute or a drafter of condominium “governing documents” may provide. 
            All other parts of a “typical” condominium property that are not defined as a part of a unit (including, in Ohio, the underlying land) are common elements.  These common elements are not considered separate parcels of real property. Rather, an “undivided” portion or percentage of the common elements is allocated to (and owned by) each unit as “an appurtenance” —a part of the legal title—to that unit.  So, if you buy a condominium unit, you also will own an “undivided” portion of the condominium’s common elements.  For instance, your portion of the condominium’s common elements might be one-tenth in a ten-unit condominium, even though your portion cannot be physically identified, and will always remain unidentified and unidentifiable!

Q:       So, if I say I’m buying a condominium, I’m really only buying a share in a condominium. Is that right?
A:        Yes. Although most people, including many of those in the real estate industry, talk and write about buying and selling “condominiums,” they really mean they are buying and selling UNITS in a condominium.

This “Law You Can Use” consumer legal information column was provided by the Ohio State Bar Association. It was originally prepared by Columbus attorney Dick Loveland, and updated by attorney Bill Loveland of Loveland Law, LLC, Upper Arlington, Ohio. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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Monday, March 3, 2014

Public Schools Must Have Reasonable Suspicion to Test Students for Drugs and Alcohol


Q:       Are students protected by the Fourth Amendment to the United States Constitution? 
A:        Yes. Under the Fourth Amendment to the U.S. Constitution, all people, including public school students, are protected against “unreasonable searches and seizures.” Any type of search that school officials conduct implicates the Fourth Amendment and its protections. 

Q:       Is a drug or alcohol test considered a search under the Fourth Amendment? 
A:        Yes. A drug test (usually administered by obtaining a urine sample) or alcohol test (usually administered through a breathalyzer) both qualify as a “search” under the Fourth Amendment. Since the Fourth Amendment applies to drug/alcohol tests administered to students, the question often becomes whether it was reasonable to conduct the search or test.   

Q:       When can public school officials test students for drugs or alcohol?  
A:        Public schools are responsible for ensuring the safety of all students. For this reason, public school officials are not held to the higher “probable cause” standard law enforcement officers must meet to conduct searches. School officials also do not need a search warrant to conduct a search (or test).  Rather, school officials may test a student for drugs or alcohol if they have a “reasonable suspicion” that a student is under the influence of drugs or alcohol at school or during a school-sponsored event. 

Q:       What does it mean to have a reasonable suspicion? 
A:        Having a “reasonable suspicion” means that there are reasonable grounds to suspect that a search (or test) will provide evidence that the student violated a school policy or rule. The reasonableness of any search (or test) depends on the facts and circumstances of each situation. 

Q:       What are some examples of reasonable suspicion? 
A:        If a student is noticeably impaired and has alcohol on his/her breath, school officials would have a reasonable suspicion to conduct a breathalyzer test. Also, noticeable impairment combined with information received from a credible source about the same student’s recent consumption of drugs or alcohol would likely constitute a reasonable suspicion. However, a student’s misbehavior alone would not justify drug/alcohol testing if there were no other indicators that the student was using drugs or alcohol. 

Q:       Can a school implement a random drug-testing policy for all students? 
A:        No; public schools may not implement a purely random (or “suspicionless”) drug-testing policy for all students in attendance. Such a policy has been held to violate the Fourth Amendment. However, public schools may implement a random drug testing policy for all students who participate in competitive activities (specifically including, but not necessarily limited to athletics, band, choir and cheerleading). Also, one court upheld a random drug-testing policy to include any student who received a school parking permit. So, practically speaking, a public school can randomly drug test a large portion of its students. 

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by attorney Mark A. Weiker of the Columbus firm Means, Bichimer, Burkholder & Baker Co., LPA. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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