Chapter 1333: TRADE PRACTICES

1333.01 Sale of trading stamps.

No person shall sell or issue a stamp, trading stamp, cash discount stamp, check, ticket, coupon, or other device which entitles the holder thereof, on presentation thereof either singly or in definite number, to receive from the vendor or other person, money, goods, wares, or merchandise, unless each of such stamps, trading stamps, cash discount stamps, checks, tickets, coupons, or other devices has legibly printed or written upon the face thereof the redeemable value thereof in lawful money of the United States.

Effective Date: 10-01-1953

1333.02 Redemption of trading stamps.

Whoever sells or issues to a person engaged in a trade, business, or profession, a stamp, trading stamp, cash discount stamp, check, ticket, coupon, or other device which entitles the holder thereof, on presentation thereof either singly or in definite number, to receive from the vendor or other person, money, goods, wares, or merchandise, shall redeem them upon presentation, either in goods, wares, merchandise, or money, at the option of such holder, at the value in money printed on the face thereof, provided they are presented for redemption in number aggregating in money value not less than five cents in each lot.

Effective Date: 10-01-1953

1333.03 Redemption of trading stamps by persons in trade, business, or profession.

Any person engaging in a trade, business, or profession, who distributes, delivers, or presents to a person dealing with him, in consideration of an article or thing purchased, a stamp, trading stamp, cash discount stamp, check, ticket, coupon, or other device entitling the holder thereof, on the presentation thereof either singly or in definite number, to receive from the person issuing or selling them or from another person, money, goods, wares, or merchandise, upon the refusal or failure of such person issuing them to redeem them, as provided in section 1333.02 of the Revised Code, is liable to the holder thereof for the face value thereof, and upon presentation thereof in lots aggregating in money value not less than five cents in each lot, shall redeem them either in goods, wares, merchandise, or money at the value printed on the face thereof, at the option of the holder thereof.

Effective Date: 10-01-1953

1333.04 Stamps redeemed by issuer.

Sections 1333.01 to 1333.04, inclusive, of the Revised Code do not apply to tickets, coupons, or other vouchers placed by a merchant or manufacturer in or upon packages of goods sold or manufactured by him if such tickets, coupons, or other vouchers are to be redeemed by such merchant or manufacturer.

Effective Date: 10-01-1953

1333.05 Motion picture license agreement definitions.

As used in sections 1333.05 to 1333.07 of the Revised Code:

(A) "Theater" means any establishment in which motion pictures are exhibited regularly to the public for a charge.

(B) "Distributor" means any person engaged in the business of renting, selling, or licensing motion pictures to exhibitors.

(C) "Exhibitor" means any person engaged in the business of operating a theater in this state.

(D) "Exhibit" or "exhibition" means showing a motion picture to the public for a charge.

(E) "Invitation to bid" means a written or oral solicitation or invitation by a distributor to one or more exhibitors to bid or negotiate for the right to exhibit a motion picture in this state.

(F) "Bid" means a written or oral proposal by an exhibitor to a distributor, which proposal is in response to an invitation to bid or negotiate and states the terms under which the exhibitor will agree to exhibit a motion picture in this state.

(G) "License agreement" means any contract between a distributor and an exhibitor for the exhibition of a motion picture by the exhibitor in this state.

(H) "Trade screening" means the showing of a motion picture by a distributor in one of the five municipal corporations within this state having the largest population, which showing is open to any exhibitor interested in exhibiting the motion picture.

(I) "Blind bidding" means bidding, negotiating, offering terms, accepting a bid, or agreeing to terms for the purpose of entering into a license agreement prior to a trade screening of the motion picture that is the subject of the agreement.

(J) "Run" means the continuous exhibition of a motion picture in a defined geographic area for a specified period of time. A "first run" means the initial exhibition of a motion picture in a designated geographic area for a specified period of time. A "subsequent run" means any continuous exhibition of a motion picture in a designated geographic area for a specified period of time after the first run.

Effective Date: 10-23-1978

1333.06 Prohibited acts - effect on license agreements.

(A) No distributor shall engage in blind bidding.

(B) No distributor shall condition the granting or execution of a license agreement on a guarantee of a minimum payment to the distributor, if the exhibitor is required by the license agreement to make any payment to the distributor that is based on the attendance or the box office receipts at a theater at which the motion picture is exhibited.

(C) No distributor shall condition the granting or execution of a license agreement on the exhibitor's advancing, more than fourteen days prior to his first exhibition of a motion picture, any money that is to be used as security for the exhibitor's performance of the license agreement or is to be applied to any payments that the exhibitor is required by the agreement to make to the distributor.

(D) Any provision of a license agreement that waives any of the prohibitions of, or fails to comply with, this section or section 1333.07 of the Revised Code is void and unenforceable. Any license agreement that fails to comply with this section and section 1333.07 of the Revised Code is voidable by the exhibitor, if the exhibitor gives the distributor written notice, prior to the exhibitor's first exhibition of the motion picture that is the subject of the agreement, of his intent to have the agreement voided.

Effective Date: 10-23-1978

1333.07 Invitations to bid.

(A) If bids are solicited from exhibitors for the purpose of entering into a license agreement, the invitation to bid shall specify:

(1) The number and length of runs to which the invitation to bid applies;

(2) Whether the invitation to bid applies to a first or subsequent run;

(3) The geographic area for each run;

(4) The names of all exhibitors who are being given an invitation to bid;

(5) The date, hour, and location at which the bid is required to be made;

(6) The name and address of the location where the bids will be opened, which location shall be within this state.

(B) If the motion picture that is the subject of a bid has not already been trade screened within this state, the distributor soliciting the bid shall include in the invitation to bid the date, time, and location of the trade screening of the motion picture that is the subject of the invitation to bid.

(C) Every distributor shall furnish to all exhibitors in this state reasonable and uniform notice of all trade screenings that are held within this state of motion pictures that he is distributing.

(D) All bids shall be submitted to the distributor in written form. The distributor or his agent shall open all bids at the same time and in the presence of at least one of the exhibitors, or the agent of an exhibitor, who has submitted a bid.

(E) Any exhibitor, or the agent of an exhibitor, who submits a bid for a particular run of a motion picture may, at reasonable times within sixty days after the bid is opened, examine any bid that is made for the same run of the motion picture by another exhibitor. The exhibitor may inspect the bids even if the distributor rejects all bids that are submitted. Within seven business days after a bid for a particular run of a motion picture is accepted, the distributor shall notify in writing each exhibitor who submitted a bid for that run of the motion picture of the terms of the accepted bid and the identity of the successful bidder. Any bid submitted is nonreturnable.

(F) If a distributor issues invitations to bid for a motion picture, he shall not enter into a license agreement for the exhibition of the motion picture except by means of the bidding process specified in this section. If the distributor rejects all bids submitted pursuant to an invitation to bid, he shall notify all exhibitors who submitted bids that he rejected all bids and shall issue a new invitation to bid.

Effective Date: 10-23-1978

1333.08 to 1333.10 [Repealed].

Effective Date: 12-30-1975

1333.11 Unfair cigarette sales act definitions.

As used in sections 1333.11 to 1333.21 of the Revised Code:

(A) "Cost to the retailer" means the invoice cost of cigarettes to the retailer, or the replacement cost of cigarettes to the retailer within thirty days prior to the date of sale, in the quantity last purchased, whichever is lower, less all trade discounts except customary discounts for cash, to which shall be added the cost of doing business by the retailer as evidenced by the standards and the methods of accounting regularly employed by the retailer in the retailer's allocation of overhead costs and expenses, paid or incurred. "Cost to the retailer" must include, without limitation, labor, including salaries of executives and officers, rent, depreciation, selling costs, maintenance of equipment, delivery costs, all types of licenses, insurance, advertising, and taxes, exclusive of county cigarette taxes paid or payable on the cigarettes. Where the sale to the retailer is on a cash and carry basis, the cartage to the retail outlet, if performed or paid for by the retailer, shall be added to the invoice cost of the cigarettes to the retailer. In the absence of proof of a lesser or higher cost by the retailer, the cartage cost shall be three-fourths of one per cent of the invoice cost of the cigarettes to the retailer, not including the amount added thereto by the wholesaler for the face value of state and county cigarette tax stamps affixed to each package of cigarettes.

(B) In the absence of proof of a lesser or higher cost of doing business by the retailer making the sale, the cost of doing business to the retailer shall be eight per cent of the invoice cost of the cigarettes to the retailer exclusive of the face value of county cigarette taxes paid on the cigarettes or of the replacement cost of the cigarettes to the retailer within thirty days prior to the date of sale in the quantity last purchased exclusive of the face value of county cigarette taxes paid on the cigarettes, whichever is lower, less all trade discounts except customary discounts for cash.

(C) "Cost to the wholesaler" means the invoice cost of the cigarettes to the wholesaler, or the replacement cost of the cigarettes to the wholesaler within thirty days prior to the date of sale, in the quantity last purchased, whichever is lower, less all trade discounts except customary discounts for cash, to which shall be added a wholesaler's markup to cover in part the cost of doing business, which wholesaler's markup, in the absence of proof of a lesser or higher cost of doing business by the wholesaler as evidenced by the standards and methods of accounting regularly employed by the wholesaler in the wholesaler's allocation of overhead costs and expenses, paid or incurred, including without limitation, labor, salaries of executives and officers, rent, depreciation, selling costs, maintenance of equipment, delivery, delivery costs, all types of licenses, taxes, insurance, and advertising, shall be three and five-tenths per cent of such invoice cost of the cigarettes to the wholesaler, to which shall be added the full face value of state and county cigarette tax stamps affixed by the wholesaler to each package of cigarettes, or of the replacement cost of the cigarettes to the wholesaler within thirty days prior to the date of sale in the quantity last purchased, whichever is lower, less all trade discounts except customary discounts for cash. Where the sale by the wholesaler to the retailer is on a cash and carry basis, the wholesaler may, in the absence of proof of a lesser or higher cost, allow to the retailer an amount not to exceed three-fourths of one per cent of the "cost to the wholesaler" excluding the amount added thereto for the face value of state and county cigarette tax stamps affixed to each package of cigarettes.

(D) Any person licensed to sell cigarettes as both a wholesaler and a retailer, who does sell cigarettes at retail, shall, in determining "cost to the retailer", first compute "cost to the wholesaler" as provided in division (C) of this section; that "cost to the wholesaler" shall then be used in lieu of the lower of either invoice cost or replacement cost less all trade discounts except customary discounts for cash in computing "cost to the retailer" as provided in divisions (A) and (B) of this section.

(E) In all advertisements, offers for sale, or sales involving two or more items at a combined price and in all advertisements, offers for sale, or sales involving the giving of any concession of any kind, whether it be coupons or otherwise, the retailer's or wholesaler's selling price shall not be below the "cost to the retailer" or the "cost to wholesaler", respectively, of all articles, products, commodities, and concessions included in such transactions.

(F)

(1) "Sell at retail," "sales at retail," and "retail sales" include any transfer of title to tangible personal property for a valuable consideration made, in the ordinary course of trade or usual prosecution of the seller's business, to the purchaser for consumption or use.

(2) "Sell at wholesale," "sales at wholesale," and "wholesale sales" include any such transfer of title to tangible personal property for the purpose of resale.

(G) "Retailer" includes any person who is permitted to sell cigarettes at retail within this state under section 5743.15 of the Revised Code.

(H) "Wholesaler" includes any person who is permitted to sell cigarettes at wholesale within this state under that section.

(I) "Person" includes individuals, corporations, partnerships, associations, joint-stock companies, business trusts, unincorporated organizations, receivers, or trustees.

(J) "County cigarette taxes" means the taxes levied under section 5743.021 , 5743.024 , or 5743.026 of the Revised Code.

Effective Date: 07-01-2002; 03-30-2006

1333.12 Selling at less than cost.

No retailer shall, with intent to injure competitors, destroy substantially or lessen competition, advertise, offer to sell, or sell at retail cigarettes at less than cost to the retailer. No wholesaler shall, with intent to injure competitors, destroy substantially or lessen competition, advertise, offer to sell, or sell at wholesale cigarettes at less than cost to the wholesaler.

Evidence of advertisement, offering to sell, or sale of cigarettes by any retail or wholesaler at less than cost to him, is prima-facie evidence of intent to injure competitors, destroy substantially or lessen competition.

Effective Date: 10-01-1953

1333.13 [Repealed].

Effective Date: 01-01-1974

1333.14 Type of sales excepted.

Sections 1333.11 to 1333.21 , inclusive, of the Revised Code do not apply to sales at retail or sales at wholesale made:

(A) In an isolated transaction and not in the usual course of business;

(B) Where cigarettes are advertised, offered for sale, or sold in bona fide clearance sales for the purpose of discontinuing trade in such cigarettes, and said advertising, offer to sell, or sale states the reason thereof and the quantity of such cigarettes advertised, offered for sale, or to be sold;

(C) Where cigarettes are advertised, offered for sale, or sold as imperfect or damaged and said advertising, offer to sell, or sale states the reason thereof and the quantity of such cigarettes advertised, offered for sale, or to be sold;

(D) Where cigarettes are sold upon the complete final liquidation of a business;

(E) Where cigarettes are advertised, offered for sale, or sold by any fiduciary or other officer acting under the order or direction of any court.

Effective Date: 10-01-1953

1333.15 Competitive prices.

Any retailer or wholesaler may advertise, offer to sell, or sell cigarettes at a price made in good faith to meet the prices of a competitor who is selling the same article at cost to him as a wholesaler or retailer. The prices of cigarettes advertised, offered for sale, or sold under the exemptions specified in section 1333.14 of the Revised Code shall not be considered the price of a competitor and used as a basis for establishing prices below cost, nor shall prices established at bankrupt sales be considered as prices of a competitor under this section.

Effective Date: 10-01-1953

1333.16 Void contract.

Any contract, express or implied, made by any person in violation of sections 1333.11 to 1333.21 , inclusive, of the Revised Code is void and no recovery thereon shall be had.

Effective Date: 10-01-1953

1333.17 Determining cost to retailer.

A court in determining cost to the retailer and cost to the wholesaler shall receive and consider as bearing on the bona fides of such cost, evidence tending to show that any person complained against under sections 1333.11 to 1333.21 , inclusive, of the Revised Code purchased cigarettes, with respect to the sale of which complaint is made, at a fictitious price, or upon terms, or in such a manner, or under such invoices as to conceal the true cost, discounts, or terms of purchase, and shall also receive and consider as bearing on the bona fides of such cost, evidence of the normal, customary, and prevailing terms and discounts in connection with other sales of a similar nature.

Effective Date: 10-01-1953

1333.18 How cost established.

In establishing the cost of cigarettes to the retailer or wholesaler, the invoice cost of said cigarettes purchased at a forced, bankrupt, close-out, or other sale outside the ordinary channels of trade, may not be used as a basis for justifying a price lower than one based upon the replacement cost of the cigarettes to the retailer or wholesaler within thirty days prior to the date of sale, in the quantity last purchased through the ordinary channels of trade.

Effective Date: 10-01-1953

1333.19 Cost survey as evidence.

Where the particular trade, of which the person complained against is a member, has an established cost survey for the trading area in which the offense under section 1333.12 of the Revised Code is committed, that cost survey is competent evidence to be used in proving the cost of the person complained against.

Effective Date: 10-01-1953

1333.20 Action to enjoin violation - damages.

Any person injured by any violation of sections 1333.11 to 1333.21 , inclusive, of the Revised Code, or any trade association which is representative of such injured person, may maintain an action to prevent, restrain, or enjoin such violation. If in such action a violation is established, the court shall enjoin and restrain or otherwise prohibit such violation and in addition shall assess in favor of the plaintiff and against the defendant the costs of the suit. In such action it is not necessary that actual damages to the plaintiff be alleged or proved, but where alleged and proved the plaintiff in such action, in addition to such injunctive relief and costs of suit, may recover from the defendant the amount of actual damages sustained by the plaintiff.

In the event no injunctive relief is sought or required, any person injured by a violation of such sections may maintain an action for damages alone and the measure of damages in such action shall be the same as prescribed in this section.

Effective Date: 10-01-1953

1333.21 Revocation or suspension of cigarette license.

The department of taxation, through the tax commissioner, shall administer and enforce sections 1333.11 to 1333.20 , inclusive, of the Revised Code. The tax commissioner, pursuant to sections 119.01 to 119.13 , inclusive, of the Revised Code may adopt, amend, and repeal rules and regulations necessary to enforce and administer sections 1333.11 to 1333.20 , inclusive, of the Revised Code. Upon notice and hearing in accordance with sections 119.01 to 119.13 , inclusive, of the Revised Code, the tax commissioner may suspend or revoke any wholesale or retail cigarette license for the violation of, or the failure of the licensee to comply with, said sections. A certified copy of the order suspending or revoking said license shall be transmitted by the tax commissioner to the county auditor of the county in which the license was issued.

Effective Date: 10-01-1953

1333.211 Surrender of license upon receipt of notice of suspension or revocation.

After a wholesale or retail cigarette license has been suspended or revoked, the tax commissioner shall forthwith send by registered mail a certified copy of the order of suspension or revocation to the licensee, addressed to the licensee at the premise or premises stated in such license. The licensee, upon receiving such notice of suspension or revocation, shall forthwith surrender the license to the county auditor of the county in which the license was issued.

A certified copy of the order suspending or revoking said license shall also be transmitted forthwith by the tax commissioner to the county auditor who shall make written demand upon the licensee to surrender his cigarette license to the county auditor, and upon receipt of such written demand the licensee shall immediately surrender the license to the county auditor. Upon the receipt of the order of the tax commissioner and the mailing by the auditor of the written demand made upon the licensee to surrender the license, the licensee shall be deemed to be engaged in the wholesale or retail business of trafficking in cigarettes without a license therefore as required by section 5743.14 of the Revised Code and shall be subject to the provisions of section 5743.19 and division (A) of section 5743.99 of the Revised Code.

In the event that the license is suspended the county auditor shall retain the license in his possession until the termination of the period of suspension when the license shall forthwith be returned to the licensee. During the period of suspension the county auditor shall not issue a new license to the licensee and any license issued to the licensee during said period shall be void.

No license shall be issued by the county auditor to a person, whose license has been revoked by the tax commissioner, for a period of one year following such revocation and such person shall not be eligible to apply for a new license for a period of one year following the order of revocation.

Effective Date: 10-02-1953

1333.22 Dry cleaner's lien - disposition of unclaimed articles.

Any garment, clothing, wearing apparel, or household goods that remain for one hundred twenty days or more in the possession of a person and on which cleaning, pressing, glazing, or washing has been done, alterations or repairs have been made, or materials or supplies have been used or furnished may be sold by that person to pay the reasonable or agreed charges for the services or labor and the costs of notifying the owner of the garment, clothing, wearing apparel, or household goods as described in this section and in section 1333.24 of the Revised Code or may be given away or otherwise disposed of by that person. The person to whom the charges are owed shall notify the owner of the garment, clothing, wearing apparel, or household goods of the time and place of the proposed sale or other disposition of it in accordance with section 1333.24 of the Revised Code, except that, if the garment, clothing, wearing apparel, or household goods remain for one hundred eighty days or more in the possession of the person, the person may sell them, give them away, or otherwise dispose of them without giving prior notice pursuant to that section. This section does not apply to property that is to be placed in storage after the performance of any of the services or labor described in this section.

Effective Date: 07-22-1994

1333.23 Disposition of cleaned articles left in storage without charges paid.

Any garment, clothing, wearing apparel, or household goods that are placed in storage and that remain in the possession of a person without the reasonable or agreed charges for the storage having been paid for twelve months, and any garment, clothing, wearing apparel, or household goods on which any of the services or labor described in section 1333.22 of the Revised Code have been performed, that subsequently have been placed in storage by agreement and that remain in the possession of a person without the reasonable or agreed charges for the services, labor, and storage having been paid for twelve months may be sold by that person to pay those charges and the costs of notifying the owner of the garment, clothing, wearing apparel, or household goods as described in this section and in section 1333.24 of the Revised Code or may be given away or otherwise disposed of by that person if the person cannot sell the garment, clothing, wearing apparel, or household goods. The person to whom the charges are owed shall notify the owner of the garment, clothing, wearing apparel, or household goods of the time and place of the proposed sale or other disposition of it in accordance with section 1333.24 of the Revised Code. This section does not apply to a person operating as a warehouse as defined in section 1307.102 of the Revised Code.

Amended by 129th General AssemblyFile No.9, HB 9, §1, eff. 6/29/2011.

Effective Date: 07-22-1994

1333.231 Receipts to be issued.

Any person who provides any of the services described in section 1333.22 or 1333.23 of the Revised Code shall provide the owner a receipt at the time the person receives the garment, clothing, wearing apparel, or household goods from the owner. The person shall make a good faith effort to include the number of items he receives and the owner's name and either the owner's telephone number or his mailing address, including zip code, as part of the receipt required by this section.

Effective Date: 07-22-1994

1333.24 Notice or publication of proposed sale of articles.

The mailing by certified mail, return receipt requested, of a letter that states the time and place of a proposed sale or other disposition of any garment, clothing, wearing apparel, or household goods and that is addressed to the owner of the garment, clothing, wearing apparel, or household goods at his mailing address given at the time of its delivery as required by section 1333.231 of the Revised Code to the person described in section 1333.22 or 1333.23 of the Revised Code for the performance of services or labor or for storage constitutes sufficient notice under those sections if the time requirement of this section is satisfied. If the mailing address of the owner was not given at that time or was given at that time and is inaccurate or incomplete and cannot be ascertained by a reasonable effort, the publication in a newspaper of general circulation within the county of a notice that states the time and place of the proposed sale or other disposition of the owner's garment, clothing, wearing apparel, or household goods constitutes sufficient notice under section 1333.22 or 1333.23 of the Revised Code if the time requirement of this section is satisfied. The person shall publish the notice, cause the notice to be published, or mail the letter described in this section at least thirty days before the date of the proposed sale or other disposition, and, if the proposed sale or other disposition is pursuant to section 1333.22 of the Revised Code, the person shall publish the notice, cause the notice to be published, or mail the letter not earlier than ninety days after the garment, clothing, wearing apparel, or household goods were delivered to the person.

Effective Date: 07-22-1994

1333.25 Charges deducted from proceeds - disposition of surplus.

The person to whom charges are owed for services, labor, or storage described in sections 1333.22 and 1333.23 of the Revised Code shall do all of the following:

(A) Deduct from the proceeds of a sale the charges owed plus the costs of notifying the owner of the garment, clothing, wearing apparel, or household goods under sections 1333.22 to 1333.24 of the Revised Code;

(B) Hold any surplus arising from the sale subject to the order of the owner;

(C) Immediately after the sale, mail by ordinary mail to the owner at his mailing address, if that address was given at the time the person received the garment, clothing, wearing apparel, or household goods from the owner and is accurate and complete or can be ascertained by reasonable effort, a notice of the sale and of the amount of any surplus due him;

(D) At any time within twelve months after the mailing of that notice, upon demand by the owner, pay to the owner the amount of any surplus due him.

Effective Date: 07-22-1994

1333.26 Notices to be posted.

All persons taking advantage of sections 1333.22 to 1333.28 of the Revised Code shall keep posted in a prominent place in their receiving office at all times two notices that shall read substantially as follows:

(A) "All articles that are cleaned, pressed, glazed, washed, altered, or repaired and that are not called for in one hundred twenty days will be sold to pay the requisite charges and certain notification expenses, given away, or otherwise disposed of. If the articles are not called for in one hundred eighty days, no notice will be given regarding the disposition of the articles."

(B) "All articles that are stored by agreement and on which the requisite charges have not been paid for twelve months will be sold to pay the charges and certain notification expenses, given away, or otherwise disposed of."

Effective Date: 07-22-1994

1333.27 Civil action for unpaid charges.

Nothing in sections 1333.22 to 1333.28 of the Revised Code prohibits any person from commencing a civil action to collect unpaid charges for services, labor, or storage described in section 1333.22 or 1333.23 of the Revised Code from the owner of any garment, clothing, wearing apparel, or household goods who is responsible for the unpaid charges, except that the proceeds of any sale conducted pursuant to sections 1333.22 to 1333.25 of the Revised Code, after deduction of the notification costs described in those sections, shall be credited against the unpaid charges. If a sale of that type is conducted prior to entry of a judgment in a civil action of that type, the court shall enter a judgment only for the balance of the unpaid charges after crediting the proceeds of the sale in the manner described in this section.

Effective Date: 07-22-1994

1333.28 Immunity.

A person who sells, gives away, or otherwise disposes of any garment, clothing, wearing apparel, or household goods or causes any garment, clothing, wearing apparel, or household goods to be sold, given away, or otherwise disposed of in accordance with sections 1333.22 to 1333.28 of the Revised Code is not liable in damages in a civil action to any person for any injury, death, or loss to person or property allegedly arising from the sale, giving away, or other disposal.

Effective Date: 07-22-1994

1333.29 Molder's lien definitions.

As used in sections 1333.29 to 1333.31 of the Revised Code:

(A) "Molder" means any person, including, but not limited to, a tool or die maker, who does either of the following:

(1) Fabricates, casts, or otherwise makes, or improves, a die, mold, pattern, or form to produce plastic, metal, paper, china, ceramic, glass, or rubber products;

(2) Uses a die, mold, pattern, or form to manufacture, assemble, or otherwise make a plastic, metal, paper, china, ceramic, glass, or rubber product.

(B) "Customer" means any person who does either of the following:

(1) Engages a molder to fabricate, cast, or otherwise make, or to improve, a die, mold, pattern, or form;

(2) Engages a person to use a die, mold, pattern, or form to manufacture, assemble, or otherwise make a plastic, metal, paper, china, ceramic, glass, or rubber product.

Effective Date: 09-25-1985

1333.30 Molder's right to destroy die, mold, pattern or form of customer after three years.

If a customer does not take possession of a die, mold, pattern, or form located in this state within three years of the date it was last used, and no agreement in writing between the customer and the molder is made to the contrary, all of the customer's rights and title to, and interest in the die, mold, pattern, or form may be transferred to the molder for the purpose of destroying such die, mold, pattern, or form. In order to effect a transfer, a molder shall send notice by certified mail, return receipt requested, to the customer at the address, if any, indicated in the agreement pursuant to which the molder gained possession of the die, mold, pattern, or form, and to the customer's last known address indicating the molder's intention to transfer all of the customer's rights and title to, and interest in a die, mold, pattern, or form. All of a customer's rights and title to, and interest in a die, mold, pattern, or form shall transfer to the molder unless within a period of one hundred twenty days of the date the molder receives a completed return receipt or a report of nondelivery of the notice, the customer takes possession of or arranges with the molder to take possession of or store the die, mold, pattern, or form. Subsequent to such period and consistent with federal patent and copyright law, and any applicable state or federal law pertaining to unfair competition, a molder may destroy a die, mold, pattern, or form.

Effective Date: 09-25-1985

1333.31 Molder's lien.

(A)

(1) A molder has a lien on a die, mold, pattern, or form that is in his possession and that belongs to a customer, for the following:

(a) The amount due from the customer for plastic, metal, paper, china, ceramic, glass, or rubber fabrication work performed with the die, mold, pattern, or form, or for making or improving the die, mold, pattern, or form;

(b) The cost associated with the notification described in division (B) of this section;

(c) Costs and interest awarded in a judgment rendered pursuant to division (C) of this section.

(2) Except as provided in division (C) of this section, the molder may retain possession of the die, mold, pattern, or form until the customer pays all applicable monetary amounts described in division (A)(1) of this section or the die, mold, pattern, or form is sold in accordance with this section.

(B) If a customer does not pay the amount due for plastic, metal, paper, china, ceramic, glass, or rubber fabrication work performed with a die, mold, pattern, or form, or for making or improving a die, mold, pattern, or form, within sixty days from the date it becomes due, the molder may send, to the last known address of the customer, by certified mail, return receipt requested, a final notice. This notice shall contain an itemized statement of the amount due, a description of the die, mold, pattern, or form being held, and a statement that, unless the amount due and the cost of the notification are paid within thirty days from the date that the notice is sent, the molder will do one of the following:

(1) Continue to retain possession of the die, mold, pattern, or form, and commence a civil action in a court of common pleas pursuant to division (C) of this section to enforce the lien provided by division (A) of this section by obtaining a judgment for the monetary amounts described in division (A)(1) of this section and a judgment permitting the die, mold, pattern, or form to be sold at an execution sale;

(2) Continue to retain possession of the die, mold, pattern, or form until the amount due and the cost of the notification are paid.

(C)

(1) If the amount due for plastic, metal, paper, china, ceramic, glass, or rubber fabrication work performed with a die, mold, pattern, or form, or for making or improving a die, mold, pattern, or form, and the cost of the notification described in division (B) of this section, are not paid within the thirty-day period provided in that division, the molder may continue to retain possession of the die, mold, pattern, or form until the amount due and the cost of the notification are paid. Alternatively, the molder may continue to retain possession of the die, mold, pattern, or form and may commence a civil action in the court of common pleas to enforce the lien by obtaining a judgment for the monetary amounts described in division (A)(1) of this section and a judgment permitting the die, mold, pattern, or form to be sold at an execution sale.

(2) If a civil action as described in division (C)(1) of this section is commenced by a molder, the customer may present in the trial any defense that he possesses, including, but not limited to, a defense that the amount the molder claims is due has already been paid or is incorrect, and a defense that the plastic, metal, paper, china, ceramic, glass, or rubber fabrication work performed, or the making or improving of the die, mold, pattern, or form, was not in compliance with the contract entered into between the customer and the molder.

The customer may obtain possession of the die, mold, pattern, or form during the pendency of the civil action by doing one of the following:

(a) The customer may deposit with the clerk of the court the amount due claimed by the molder and the cost of the notification provided by the molder pursuant to division (B) of this section, together with an amount that the court considers sufficient to cover the probable amount of the costs and interest that could be awarded to the molder if he prevails in the civil action;

(b) The customer may deposit with the clerk of the court a bond as described in this division. The bond shall be in an amount equal to the amount due claimed by the molder, the cost of the notification provided by the molder pursuant to division (B) of this section, and an amount that the court considers sufficient to cover the probable amount of the costs and interest that could be awarded to the molder if he prevails in the civil action. At least two sureties shall be required on the bond, which sureties shall be approved by the court. The bond shall be conditioned that, if the molder prevails in the judgment, the customer and the sureties are liable for the monetary amounts described in division (A)(1) of this section.

(D) If a molder prevails in a civil action commenced pursuant to division (C) of this section, the judgment is not satisfied by the customer within one week from its entry, and the customer did not obtain possession of the die, mold, pattern, or form pursuant to division (C)(2) of this section, the die, mold, pattern, or form may be sold at an execution sale pursuant to the judgment of the court. If a customer obtained possession of the die, mold, pattern, or form pursuant to division (C)(2) of this section, the money deposited pursuant to division (C)(2)(a) of this section or the bond deposited pursuant to division (C)(2)(b) of this section shall inure to the benefit of the molder.

(E) Except as otherwise provided in this division, if a die, mold, pattern, or form is sold pursuant to the judgment of a court of common pleas and the proceeds of the sale are in excess of the amount due from the customer, the cost of the notification provided by the molder pursuant to division (B) of this section, the costs and interest awarded the molder, and the costs of the execution sale, the excess proceeds shall be remitted to the customer. If a person holds a prior lien on or a perfected security interest in the die, mold, pattern, or form, the excess proceeds shall be placed instead in escrow, and the excess proceeds shall be subject to the claims of the prior lienholders and perfected security interest holders against the customer. If the proceeds of a sale are insufficient to satisfy the amount due from the customer, the cost of the notification provided by the molder pursuant to division (B) of this section, the costs and interest awarded the molder, and the costs of the execution sale, the customer is liable for any deficiency.

(F) An execution sale is not authorized pursuant to this section, and a court shall not enter a judgment permitting such an execution sale, if the sale would violate federal patent or copyright law or any applicable state or federal law pertaining to unfair competition.

(G) This section does not affect the availability of any civil action or other legal remedy that a customer may have against a molder, including, but not limited to, a contract action or a replevin action pursuant to Chapter 2737. of the Revised Code.

Effective Date: 09-25-1985

1333.32 Definitions - moldbuilder' lien.

For purposes of sections 1333.32 to 1333.34 of the Revised Code, all of the following apply:

(A) "Customer" means a person that causes a moldbuilder to fabricate, cut, cast, or design molds.

(B) "Mold" means molds, dies, forms, tools, and parts, for the plastic industry or for the metal forming industry.

(C) "Moldbuilder" means a person, including but not limited to, a model maker, patternmaker, die maker, jig and fixture builder, die sinker, mold designer, mold programmer, and mold engineer, that fabricates, cuts, casts, or designs molds for the plastic industry or for the metal forming industry. "Moldbuilder" does not include a person described in division (A)(2) of section 1333.29 of the Revised Code, unless the person also engages in the activities described in this division.

(D) "Molder" has the same definition as in division (A) of section 1333.29 of the Revised Code, but does not include a moldbuilder.

(E) "Person" means an individual, firm, partnership, association, corporation, limited liability company, or other legal entity.

Effective Date: 06-09-2004

1333.33 Moldbuilder's lien.

(A)

(1) A moldbuilder has a lien on all molds produced by it and on all proceeds from the assignment, sale, transfer, exchange, or other disposition of the molds produced by it until the moldbuilder is paid in full all amounts due the moldbuilder for the production of the mold or these proceeds. The lien described in this division attaches when the mold is delivered from the moldbuilder to the customer.

(2) The amount of the lien described in division (A)(1) of this section is the amount that a customer or molder owes the moldbuilder for the fabrication, repair, or modification of the mold.

(3) The moldbuilder retains the lien described in division (A)(1) of this section even if the moldbuilder is not in possession of the mold for which the lien is claimed.

(B) A moldbuilder perfects a lien described in division (A) of this section by filing a financing statement in accordance with the requirements of section 1309.502 of the Revised Code, which filing constitutes constructive notice of the lien described in division (A) of this section.

(C) The perfected lien described in division (B) of this section remains valid until all of the following occur:

(1) The moldbuilder receives the full amount due it for the mold.

(2) The customer receives a verified statement from the molder that the molder has paid the amount for which the lien is claimed.

(3) The financing statement is terminated.

(D) The priority of a perfected lien described in division (B) of this section on the same mold shall be determined based on the time that the lien attaches. The first lien that attaches pursuant to division (A)(1) of this section has priority over liens that attach subsequent to the first lien.

(E)

(1) Any provision of a contract that waives a moldbuilder's right or an obligation of a person established by sections 1333.32 to 1333.34 of the Revised Code is void and unenforceable as against public policy. Division (E)(1) of this section does not affect the validity of other provisions of the contract or of a related document, policy, or agreement that can be given effect without the voided provision.

(2) Any provision of a contract requiring the application of the law of another state rather than sections 1333.32 to 1333.34 of the Revised Code is void and unenforceable as against public policy.

Effective Date: 06-09-2004

1333.34 Enforcement of moldbuilder's lien.

(A) To enforce a moldbuilder's lien attached pursuant to section 1333.33 of the Revised Code, the moldbuilder shall give written notice to the customer and molder stating that a lien is claimed; the amount that the moldbuilder claims is owed for fabrication, repair, or modification of the mold; and a demand for payment. The written notice described in this division shall be given by hand delivery or certified mail, return receipt requested, to the last known address of the customer and to the last known address of the molder.

(B) If the moldbuilder has not been paid the amount claimed in the notice described in division (A) of this section within ninety days after that notice is received by the customer and by the molder, the moldbuilder has a right to possession of the mold and may do the following:

(1) Enforce the right to possession of the mold by judgment, foreclosure, or any available judicial procedure;

(2) Commence a civil action described in division (D) of this section in a court of common pleas to enforce the lien, including by obtaining a judgment for the amounts owed that are described in division (A) of this section and a judgment permitting the mold to be sold at an execution sale;

(3) One or more of the following:

(a) Take possession of the mold, if possession without judicial process can be done without breach of the peace;

(b) Sell the mold in a public auction.

(C) A sale pursuant to this section shall not be made or possession shall not be obtained pursuant to division (B) of this section, if it violates a right of the customer or molder under federal patent, bankruptcy, or copyright laws.

(D) A moldbuilder that suffers damages because of a violation of sections 1333.32 to 1333.34 of the Revised Code may obtain appropriate legal and equitable relief, including damages, in a civil action.

(E) In any action by a moldbuilder to enforce a perfected lien described in section 1333.33 of the Revised Code, the court shall award the moldbuilder that is the prevailing party reasonable attorney fees, court costs, and expenses related to enforcement of the lien.

Effective Date: 06-09-2004

1333.35 Bankruptcy and receiver's sales definitions.

As used in sections 1333.35 to 1333.37 , inclusive, of the Revised Code:

(A) "Additional merchandise" means all goods, wares, and merchandise not part of bankruptcy or receivership proceedings.

(B) "Person" means an individual, corporation, partnership, association, or any unincorporated organization.

(C) "Bankruptcy sale" or "receiver's sale" means any offer to sell to the public, or sale to the public of goods, wares, or merchandise upon the implied or direct holding out, or representation that such sale is being conducted under any one or combination of the following circumstances:

(1) That such sale is being conducted because of bankruptcy or receivership occurring on or at the premises.

(2) That, at the premises where a person suffered bankruptcy or receivership, such goods, wares, or merchandise are being offered for sale or sold to the public and the person conducting the sale acquired such goods, wares, or merchandise as a result of such bankruptcy or receivership.

Effective Date: 10-24-1961

1333.36 Prohibition on sale of additional merchandise at bankruptcy or receiver's sale.

No person shall with intent to mislead or deceive the general public, advertise, offer to sell, or sell additional merchandise at the bankruptcy sale or at a receiver's sale.

Effective Date: 10-24-1961

1333.37 Intent to mislead or deceive general public.

The offering or display for sale of additional merchandise by any person conducting a bankruptcy or receiver's sale at the premises of such sale is prima-facie evidence of intent to mislead or deceive the general public, provided, however, that goods and merchandise stored in a warehouse shall not be presumed to be part of such sale.

Effective Date: 10-24-1961

1333.41 Lien of bailee for hire on personal property - enforcement of lien.

(A) Except as provided in division (E) of this section, a bailee for hire who performs services or provides materials with respect to any personal property, has a lien on the personal property to secure the reasonable value of the services he performs and the materials he provides. The lien shall be subject to prior recorded liens on the personal property. If the owner or legal possessor of the personal property, within thirty days after he has received notice that the bailee for hire has completed performing his services or providing materials, does not claim the personal property or commence litigation to claim the property, or alternatively, in the case of an owner or legal possessor who is the owner of, or the principal contractor associated with, a public or private construction project, does not deposit a surety bond in accordance with section 1333.42 of the Revised Code or file an application as described in division (D) of that section with the appropriate court of common pleas, then the bailee for hire may enforce the lien pursuant to the procedure in this section.

(B) To enforce the lien created by division (A) of this section, a bailee for hire shall do all of the following:

(1) Send a written notice as described in division (C) of this section by certified mail, return receipt requested, to the owner or legal possessor of the personal property and to any person who holds a security interest in it, at least thirty days after the bailee for hire has completed performing his services or providing materials with respect to the personal property.

(2) If any of the copies of the certified mail notice sent pursuant to division (B)(1) of this section is refused and the envelope containing the notice is returned with an endorsement showing that refusal, or if any of the copies is unclaimed and the envelope containing it is returned with an endorsement to that effect, send a copy of the written notice as described in division (C) of this section by ordinary mail, evidenced by a certificate of mailing, to the owner or legal possessor of the personal property or to the person who holds a security interest in the personal property, whichever situation applies, at least seven days prior to the proposed date of the sale of the personal property. For purposes of determining the date on which a bailee for hire may commence the enforcement of a lien as provided in division (A) of this section, a notice sent by ordinary mail shall be deemed received within three days after the date of its certificate of mailing.

(3) Obtain from a disinterested person a written appraisal of the value of the personal property.

(4) If the personal property is appraised at five hundred dollars or more, place a classified advertisement in a newspaper of general circulation in the county in which the personal property is located, which advertisement shall describe the personal property and include a statement that is substantially similar to the following statement: "On or after (insert the date specified in the written notice described in division (C) of this section), the described personal property will be sold pursuant to section 1333.41 of the Ohio Revised Code."

(C) The written notice required by divisions (B)(1) and (2) of this section shall include all of the following:

(1) A notice of the lien created by division (A) of this section;

(2) A description of the personal property that is the subject of the lien;

(3) An itemized statement that represents the reasonable value of the services performed and the materials provided by the bailee for hire that are secured by the lien;

(4) A legible statement relative to the potential sale of the personal property, in substantially the following form: "Any personal property that is not claimed within thirty days after its owner or legal possessor has received notice that the bailee for hire has completed performing any service on the property or providing any material for the property can be sold pursuant to section 1333.41 of the Ohio Revised Code. (Insert only if applicable to the proposed sale of particular personal property: "alternatively, personal property may be sold pursuant to section 1333.41 of the Revised Code if its owner or legal possessor is the owner of, or the principal contractor associated with, a public or private construction project and fails to deposit a surety bond in accordance with section 1333.42 of the Revised Code or file an application as described in division (D) of that section with the appropriate court of common pleas within thirty days after the owner or principal contractor has received notice that the bailee for hire has completed performing any service on the property or providing any material for the property.") The sale of the personal property described in this notice and with respect to which I have performed services or provided materials will occur on or after (insert a date that is at least thirty days after the date on which the written notice sent pursuant to division (B)(1) or (2) of this section was received by the owner or legal possessor), unless the owner or legal possessor of that personal property makes a reasonable attempt to claim it and pay the reasonable value of the services performed and of the materials provided by me prior to that date or unless the owner or legal possessor of that personal property commences litigation to claim or take possession of the property prior to that date (insert only if applicable to the proposed sale of particular personal property: "or unless, if the owner or legal possessor of that personal property is the owner of, or the principal contractor associated with, a public or private construction project, the owner or principal contractor deposits a surety bond in accordance with section 1333.42 of the Revised Code or files an application as described in division (D) of that section with the appropriate court of common pleas prior to that date")."

(D)

(1) A bailee for hire who wants to sell personal property pursuant to this section shall post a sign in a conspicuous location in his place of business that contains a statement in substantially the following form: "Personal property that is not claimed by its owner or legal possessor within thirty days after he receives notice that we have performed any service on it or provided any materials for it can be sold pursuant to section 1333.41 of the Ohio Revised Code. Any owner or legal possessor of personal property who is the owner of, or the principal contractor associated with, a public or private construction project has additional options to preclude such a sale and should consult section 1333.42 of the Revised Code."

(2) After a bailee for hire has complied with divisions (B) and (C) of this section and if he has posted a sign as required by division (D)(1) of this section, he may sell the personal property that is the subject of the lien in a reasonable manner and for the best obtainable price that is not less than two-thirds of the appraised value of the personal property. Upon the sale of the personal property pursuant to this section, the claim of the bailee for hire for the reasonable value of the services he performed and of the materials he provided is canceled. The proceeds of the sale shall be applied as follows:

(a) First, to the costs of the written notice provided pursuant to division (B)(1) and, if necessary, division (B)(2) of this section, to the cost of any newspaper advertisement required by this section, and to the cost of the sale of the property;

(b) Second, to the reasonable value of the services performed and of the materials provided by the bailee for hire;

(c) If the proceeds of the sale exceed the total of the costs of the provision of the written notice pursuant to division (B)(1) and, if necessary, division (B)(2) of this section, the cost of any newspaper advertisement required by this section, the cost of the sale, and the reasonable value of the services performed and of the materials provided by the bailee for hire, the balance shall be paid as follows:

(i) First, to any person who holds any encumbrance on the personal property;

(ii) Second, any remaining balance to the owner or legal possessor of the personal property.

(3) A bailee for hire shall not sell any personal property that is the subject of a lien as provided in division (A) of this section, if, at any time before the sale pursuant to division (D)(2) of this section has been accomplished, the owner or legal possessor of the personal property has done any of the following:

(a) Commenced any litigation to claim or take possession of the property;

(b) Made a reasonable effort to claim the property and pay the reasonable value of the services performed and of the materials provided by the bailee for hire;

(c) If the owner or legal possessor of the personal property is the owner of, or the principal contractor associated with, a public or private construction project, deposited a surety bond in accordance with section 1333.42 of the Revised Code or filed an application as described in division (D) of that section with the appropriate court of common pleas.

(E) This section does not apply to a bailee for hire who performs any service or provides any materials with respect to motor vehicles, as defined in section 4501.01 of the Revised Code; to a bailee for hire who is authorized to sell garments, clothing, wearing apparel, or household goods pursuant to sections 1333.22 to 1333.28 of the Revised Code; or to any other bailee for hire with respect to whom one or more sections of the Revised Code specify a procedure for selling personal property to obtain the amount due to the bailee for hire for services rendered or materials provided.

Effective Date: 07-22-1994

1333.42 Lien of bailee for hire on personal property - construction project.

(A) As used in this section and section 1333.41 of the Revised Code, "public or private construction project" means a construction project that is for public or private purposes and that is located, in whole or in part, in this state or another state.

(B) If a bailee for hire performs services or provides materials with respect to any personal property of the owner of, or principal contractor associated with, a public or private construction project, and if the bailee for hire obtains a lien with respect to that personal property pursuant to section 1333.41 of the Revised Code or the common law of this state in order to secure the reasonable value of the services that he performed or of the materials that he provided, then the owner or principal contractor may cause the lien to be discharged by depositing a bond as described in division (C) of this section with the clerk of the court of common pleas of the county in which the bailee for hire holds the personal property subject to the lien, and, if necessary, by complying with division (D) of this section.

(C) The bond necessary to cause the discharge of a lien as described in division (B) of this section shall satisfy all of the following:

(1) The bond shall be written by a surety that is authorized to execute bonds in this state;

(2) Except as otherwise provided in this division, the bond shall be in an amount that at least equals twice the reasonable value of the services that the bailee for hire performed, the materials that the bailee for hire provided, or both, as claimed by the bailee for hire. The amount of the bond may exceed, but is not required to exceed, twice the value of the personal property subject to the lien.

(3) The bond shall be conditioned that the owner of, or the principal contractor associated with, a public or private construction project who deposits the bond, will satisfy, in full, any judgment rendered against that owner or principal contractor in a civil action that the bailee for hire commences, within one year following the date of the deposit, to obtain the reasonable value of the services that he performed or of the materials that he provided.

(D) If a bailee for hire who obtains a lien as described in division (B) of this section and the owner of, or the principal contractor associated with, a public or private construction project whose personal property is subject to the lien do not agree as to the value of the personal property subject to the lien, then, prior to depositing a bond as described in division (C) of this section with the clerk of the court of common pleas of the county in which the bailee for hire holds the personal property subject to the lien, the owner or principal contractor shall file an application with that court in order to obtain a judicial determination of that value. If such an application is filed, then, after notice to the bailee for hire and the owner or principal contractor, the court shall hold a hearing on the application and then render a determination as to that value. The hearing shall be held within ten days following the date that the notice is so given.

(E) If a bond as described in division (C) of this section is deposited in accordance with this section, and if the bailee for hire who possesses the personal property subject to the lien described in division (A) of this section then fails to return the personal property to the owner of, or the principal contractor associated with, the public or private construction project who deposited the bond, then the owner or principal contractor may file an application with the court of common pleas of the county in which the bailee for hire holds the personal property to obtain an order requiring the bailee for hire to return the personal property to the owner or principal contractor. After notice to the bailee for hire and the owner or principal contractor, the court shall hold a hearing on the application, which hearing shall be held within ten days following the date that the notice is so given. If, following the hearing, the court determines that the bond complies with division (C) of this section and was deposited in accordance with this section, it shall issue the requested order.

Effective Date: 07-18-1990

1333.51 [Repealed].

Effective Date: 07-01-1996

1333.52 Record piracy.

(A) No person shall purposely do either of the following:

(1) Transcribe, without the consent of the owner, any sounds recorded on a phonograph record, disc, wire, tape, film, or other article on which sounds are recorded, with intent to sell or use for profit through public performance any product derived from the transcription. Each transcription of sound in violation of division (A)(1) of this section is a separate offense.

(2) Advertise, offer for sale, or sell, any product knowing it to have been produced in violation of division (A)(1) of this section.

(B) No person shall purposely manufacture, sell, or distribute for profit any phonograph record, tape, or album of phonograph records or tapes unless the record and the outside cover, box, or jacket of the record, tape, or album clearly and conspicuously discloses the name and street address of the manufacturer of the record, tape, or album, and the name of the performer or group whose performance is recorded. Each manufacture, sale, or distribution of a different performance on a record, tape, or album in violation of this section is a separate offense.

(C) This section does not apply to the following:

(1) Transcription by a radio or television broadcaster of any sounds in connection with a radio, television, or cable broadcast transmission, or for archival purposes;

(2) Any person who transcribes sounds for personal use.

Effective Date: 05-10-1976

1333.55 Disclosing tax information.

No person who engages in the business of preparing for others or assisting others to prepare any tax return or who has access to the records of a person, corporation, or firm engaging in such business shall disclose any information, including a name or address, obtained from or through any person in connection with the preparation of that person's tax return unless such disclosure is necessary to the preparation of the return, expressly authorized by law, pursuant to court order or subpoena, specifically consented to in writing by that person in a separate document, or necessary to contact that person in order to obtain his written consent to a disclosure.

Whoever violates this section shall be fined not less than one hundred nor more than one thousand dollars or imprisoned not less than six months nor more than one year.

Effective Date: 12-03-1971

1333.60 Voluntary delivery of unordered goods constitutes unconditional gift.

Where any merchandise is offered for sale by means of its voluntary delivery to an offeree who has neither ordered nor requested it, the delivery of such merchandise constitutes an unconditional gift to the recipient.

Effective Date: 11-06-1969

1333.61 Uniform trade secrets act definitions.

As used in sections 1333.61 to 1333.69 of the Revised Code, unless the context requires otherwise:

(A) "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.

(B) "Misappropriation" means any of the following:

(1) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means;

(2) Disclosure or use of a trade secret of another without the express or implied consent of the other person by a person who did any of the following:

(a) Used improper means to acquire knowledge of the trade secret;

(b) At the time of disclosure or use, knew or had reason to know that the knowledge of the trade secret that the person acquired was derived from or through a person who had utilized improper means to acquire it, was acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use, or was derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use;

(c) Before a material change of their position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

(C) "Person" has the same meaning as in division (C) of section 1.59 of the Revised Code and includes governmental entities.

(D) "Trade secret" means information, including the whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, pattern, compilation, program, device, method, technique, or improvement, or any business information or plans, financial information, or listing of names, addresses, or telephone numbers, that satisfies both of the following:

(1) It derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use.

(2) It is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Effective Date: 07-20-1994; 2008 HB562 (Vetoed) 06-24-2008

1333.62 Injunction against misappropriation.

(A) Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, unless the court finds that termination of the injunction is likely to provide a person who committed an actual or threatened misappropriation with a resulting commercial advantage, in which case the injunction shall be continued for an additional reasonable time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation.

(B) In exceptional circumstances, an injunction may condition future use upon payment of a reasonable royalty for no longer than the time for which use could have been prohibited. Exceptional circumstances include a material and prejudicial change of position prior to acquiring knowledge or reason to know of misappropriation that renders a prohibitive injunction inequitable.

(C) In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order.

Effective Date: 07-20-1994

1333.63 Damages recoverable.

(A) Except to the extent that a material and prejudicial change of position prior to acquiring knowledge or reason to know of misappropriation renders a monetary recovery inequitable, a complainant in a civil action is entitled to recover damages for misappropriation. Damages may include both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss. In lieu of damages measured by any other methods, the damages caused by misappropriation may be measured by imposition of liability for a reasonable royalty that is equitable under the circumstances considering the loss to the complainant, the benefit to the misappropriator, or both, for a misappropriator's unauthorized disclosure or use of a trade secret.

(B) If willful and malicious misappropriation exists, the court may award punitive or exemplary damages in an amount not exceeding three times any award made under division (A) of this section.

Effective Date: 07-20-1994

1333.64 Attorney's fees.

The court may award reasonable attorney's fees to the prevailing party, if any of the following applies:

(A) A claim of misappropriation is made in bad faith.

(B) A motion to terminate an injunction is made or resisted in bad faith.

(C) Willful and malicious misappropriation exists.

Effective Date: 07-20-1994

1333.65 Authorized means of preserving secrecy.

In an action under sections 1333.61 to 1333.69 of the Revised Code, a court shall preserve the secrecy of an alleged trade secret by reasonable means that may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.

Effective Date: 07-20-1994

1333.66 Time for commencing action.

An action for misappropriation shall be commenced within four years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered. For the purposes of this section, a continuing misappropriation constitutes a single claim.

Effective Date: 07-20-1994

1333.67 Conflicting laws displaced - remedies not affected.

(A) Except as provided in division (B) of this section, sections 1333.61 to 1333.69 of the Revised Code displace conflicting tort, restitutionary, and other laws of this state providing civil remedies for misappropriation of a trade secret.

(B) Sections 1333.61 to 1333.69 of the Revised Code do not affect any of the following:

(1) Contractual remedies, whether or not based on misappropriation of a trade secret;

(2) Other civil remedies that are not based on misappropriation of a trade secret;

(3) Criminal remedies, including those in other sections of this chapter, whether or not based on misappropriation of a trade secret.

Effective Date: 07-20-1994

1333.68 Uniformity of application and construction of provisions.

Sections 1333.61 to 1333.69 of the Revised Code shall be applied and construed to effectuate their general purpose to make uniform the law with respect to their subject among states enacting them.

Effective Date: 07-20-1994

1333.69 Title of act.

Sections 1333.61 to 1333.69 of the Revised Code may be cited as the "Uniform Trade Secrets Act."

Effective Date: 07-20-1994

1333.71 Sale of containers with milk or baked goods company logo.

No person shall sell or purchase a plastic crate or tray that is used for the carrying of retail containers of milk or baked goods and that has embossed upon it a company logo.

Effective Date: 2008 SB171 09-11-2008

1333.72 Energy usage labels for new grain-drying equipment.

No person shall sell, offer for sale, or install for use any new grain-drying equipment unless the equipment is labeled or accompanied by an operator's manual to indicate its energy usage to the prospective purchaser of the equipment. Whoever violates this section is guilty of a minor misdemeanor.

Renumbered from § 1301.16 by 129th General AssemblyFile No.9, HB 9, §1, eff. 6/29/2011.

Effective Date: 03-14-1980

1333.73 [Repealed].

Renumbered from § 1301.18 by 129th General AssemblyFile No.9, HB 9, §1, eff. 6/29/2011.

1333.73, 1333.74 [Repealed].

Effective Date: 03-14-1980

1333.75, 1333.76 Amended and Renumbered RC 4517.62, 4517.63.

Effective Date: 03-14-1980

1333.77, 1333.78 [Repealed].

Effective Date: 03-14-1980

1333.81 Confidentiality of information.

No employee of another, who in the course and within the scope of his employment receives any confidential matter or information, shall knowingly, without the consent of his employer, furnish or disclose such matter or information to any person not privileged to acquire it.

Effective Date: 01-01-1974

1333.82 Alcoholic beverages franchise definitions.

As used in sections 1333.82 to 1333.87 of the Revised Code:

(A) "Alcoholic beverages" means beer and wine as defined in section 4301.01 of the Revised Code.

(B) "Manufacturer" means a person, whether located in this state or elsewhere, that manufactures or supplies alcoholic beverages to distributors in this state.

(C) "Distributor" means a person that sells or distributes alcoholic beverages to retail permit holders in this state, but does not include the state or any of its political subdivisions.

(D) "Franchise" means a contract or any other legal device used to establish a contractual relationship between a manufacturer and a distributor.

(E) "Good faith" means the duty of any party to any franchise, and all officers, employees, or agents of any party to any franchise, to act in a fair and equitable manner toward each other so as to guarantee each party freedom from coercion or intimidation; except that recommendation, endorsement, exposition, persuasion, urging, or argument shall not be considered to constitute a lack of good faith or coercion.

(F) "Brand," as applied to wine, means a wine different from any other wine in respect to type, brand, trade name, or container size.

(G) "Sales area or territory" means an exclusive geographic area or territory that is assigned to a particular A or B permit holder and that either has one or more political subdivisions as its boundaries or consists of an area of land with readily identifiable geographic boundaries. "Sales area or territory" does not include, however, any particular retail location in an exclusive geographic area or territory that had been assigned to another A or B permit holder before April 9, 2001.

Effective Date: 10-11-2002; 03-30-2006

1333.83 Written franchise agreement.

Every manufacturer of alcoholic beverages shall contract with or offer in good faith to its distributors a written franchise providing for, and specifying the rights and duties of both parties in effecting, the sale of the specified brands or products of the manufacturer. Any provision of a franchise agreement that waives any of the prohibitions of, or fails to comply with, sections 1333.82 to 1333.87 of the Revised Code is void and unenforceable. Any notice or acceptance required to be given or made by either party to the franchise shall be in writing and signed by the authorized representative of the parties. Any breach, actual or claimed, of a franchise made pursuant to this section shall not be grounds for suspension or revocation of any permit or supplier registration issued by the division of liquor control. When a distributor of beer or wine for a manufacturer, or the successors or assigns of the manufacturer, distributes the beer or wine for ninety days or more without a written contract, a franchise relationship is established between the parties, and sections 1333.82 to 1333.87 of the Revised Code apply to the manufacturer, its successor or assigns, and the distributor.

Effective Date: 07-23-2004

1333.84 Prohibited acts.

Notwithstanding the terms of any franchise, no manufacturer or distributor engaged in the sale and distribution of alcoholic beverages, or a subsidiary of any such manufacturer, shall:

(A) Fail to act in good faith or without just cause in acting or purporting to act under the terms of a franchise or in cancelling or failing to renew a franchise;

(B) Award an additional franchise for the sale of the same brand within the same sales area or territory. No franchise prohibits a retail permit holder having permits at more than one location from buying from one or more B-2 or B-5 permit holders, even if all permit premises are not located in the same franchise area or territory. Nothing contained in this division shall be construed as modifying the provisions of section 4301.241 of the Revised Code. Nothing contained in this division precludes a manufacturer of wine from awarding a franchise, or requires a manufacturer of wine to award a franchise, for the sale of a new brand to any B-2 or B-5 permit holder .

(C) Require a distributor to submit profit and loss statements, balance sheets, or financial records as a requirement to retain its franchise;

(D) Without reasonable cause, withhold delivery of alcoholic beverages ordered by a distributor, or change or amend a distributor's quota of a manufacturer's product or brand;

(E) Coerce a distributor by any means to participate in or contribute to any local or national advertising fund controlled directly or indirectly by a manufacturer;

(F) Refuse to recognize the rights of surviving partners, shareholders, or heirs and fail to act in good faith in accordance with reasonable standards for fair dealing, with respect to the distributor's right to sell, assign, transfer or otherwise dispose of the distributor's business, in all or in part, except that the distributor shall have no right to sell, assign, or transfer the franchise without the prior consent of the manufacturer, who shall not unreasonably withhold the manufacturer's consent.

(G)

(1) On and after the effective date of this amendment, do either of the following:

(a) Award a distribution franchise or territory to itself, to a subsidiary, or to another entity in which it has any financial interest, directly or indirectly, by stock ownership, or through interlocking directors in a corporation, or otherwise, if that franchise, territory, or portion of that territory has been previously awarded, sold, assigned, or transferred to a distributor;

(b) Acquire a franchise or territory if that franchise, territory, or portion of that territory has been previously awarded, sold, assigned, or transferred to a distributor.

(2) Division (G)(1) of this section does not prohibit a manufacturer or subsidiary of a manufacturer from continuing to operate a distribution franchise or distribute alcoholic beverages within a designated territory if prior to the effective date of this amendment the manufacturer either acquired the distribution franchise or territory, or awarded the franchise or territory to itself or a subsidiary.

(3) Division (G)(1) of this section does not, and shall not be construed to, limit the actions that may be taken in accordance with an A-1c permit under section 4303.022 of the Revised Code or a B-2a permit under section 4303.071 of the Revised Code.

(4) Notwithstanding division (G)(1) of this section or any permit requirement under sections 4303.06, 4303.07, 4303.071, 4303.08, 4303.09, and 4303.10 of the Revised Code, if a distribution franchise is canceled or territory is substantially changed by a manufacturer pursuant to either division (A)(1) or (2) of section 1333.85 of the Revised Code, the manufacturer may acquire or award itself the franchise or territory for not longer than one hundred eighty days from the date of cancellation. After the one hundred eighty day period, the manufacturer shall sell or transfer the franchise or territory to a distributor in which the manufacturer does not have any financial interest, directly or indirectly, by stock ownership, or through interlocking directors in a corporation, or otherwise.

Amended by 130th General Assembly File No. 8, SB 48, §1, eff. 7/30/2013.

Effective Date: 07-26-1974

1333.85 Cancellation, failure to renew or substantial change in territory.

Except as provided in divisions (A) to (D) of this section, no manufacturer or distributor shall cancel or fail to renew a franchise or substantially change a sales area or territory without the prior consent of the other party for other than just cause and without at least sixty days' written notice to the other party setting forth the reasons for such cancellation, failure to renew, or substantial change.

(A) Neither party shall be required to give to the other party such notice if any of the following events occur:

(1) The filing of a petition in bankruptcy or an assignment for the benefit of creditors by the other party;

(2) The filing of an involuntary petition in bankruptcy against either party, which petition is not dismissed within thirty days;

(3) The cancellation, revocation, or suspension for more than thirty days of any permit required to be held by either party to authorize the handling of alcoholic beverages.

The occurrence of any one of the foregoing events shall constitute just cause for cancellation or failure to renew a franchise or substantially changing a sales area or territory without the prior consent of the other party.

(B) The occurrence of any of the following events shall not constitute just cause for cancellation of or failure to renew a franchise or substantially changing a sales area or territory without the prior consent of the other party:

(1) The failure or refusal on the part of either party to engage in any act or practice which would result in a violation of any federal law or regulation or any law or rule of this state;

(2) The restructuring, other than in bankruptcy proceedings, of a manufacturer's business organization;

(3) A unilateral alteration of the franchise by a manufacturer for a reason unrelated to any breach of the franchise or violation of sections 1333.82 to 1333.86 of the Revised Code by the distributor;

(4) A manufacturer's sale, assignment, or other transfer of the manufacturer's product or brand to another manufacturer over which it exercises control.

(C) If a manufacturer or distributor cancels or fails to renew a franchise, the distributor shall sell to the manufacturer and the manufacturer shall purchase from the distributor all of the distributor's inventory of the manufacturer's products and sales aids at the laid-in cost to the distributor including freight and cartage, provided that upon payment therefor the distributor shall transfer to the manufacturer good title to all such property free of liens and encumbrances.

(D) If a successor manufacturer acquires all or substantially all of the stock or assets of another manufacturer through merger or acquisition or acquires or is the assignee of a particular product or brand of alcoholic beverage from another manufacturer, the successor manufacturer, within ninety days of the date of the merger, acquisition, purchase, or assignment, may give written notice of termination, nonrenewal, or renewal of the franchise to a distributor of the acquired product or brand. Any notice of termination or nonrenewal of the franchise to a distributor of the acquired product or brand shall be received at the distributor's principal place of business within the ninety-day period. If notice is not received within this ninety-day period, a franchise relationship is established between the parties. If the successor manufacturer complies with the provisions of this division, just cause or consent of the distributor shall not be required for the termination or nonrenewal. Upon termination or nonrenewal of a franchise pursuant to this division, the distributor shall sell and the successor manufacturer shall repurchase the distributor's inventory of the terminated or nonrenewed product or brand as set forth in division (C) of this section, and the successor manufacturer also shall compensate the distributor for the diminished value of the distributor's business that is directly related to the sale of the product or brand terminated or not renewed by the successor manufacturer. The value of the distributor's business that is directly related to the sale of the terminated or nonrenewed product or brand shall include, but shall not be limited to, the appraised market value of those assets of the distributor principally devoted to the sale of the terminated or nonrenewed product or brand and the goodwill associated with that product or brand.

Effective Date: 11-09-1994

1333.851 Distributors of acquired manufacturers.

(A) With respect to any merger, acquisition, purchase, or assignment under division (D) of section 1333.85 of the Revised Code, both of the following apply:

(1) The territories for the particular product or brand of alcoholic beverage shall not be assigned to another distributor until the successor manufacturer compensates the terminated or nonrenewed distributor for the diminished value of the distributor's business.

(2) When a distributor receives written notice of termination or nonrenewal of its franchise pursuant to division (D) of section 1333.85 of the Revised Code, the distribution of beer or wine for ninety days or more without a written contract shall not constitute a franchise relationship between the successor manufacturer and the distributor under section 1333.83 of the Revised Code.

(B) With respect to the merger, acquisition, or purchase of a manufacturer by a successor manufacturer or the purchase or assignment of a product or brand to a successor manufacturer under division (D) of section 1333.85 of the Revised Code, all of the following apply:

(1) Except as otherwise provided in division (B)(2) of this section, within seventy-five days after a distributor receives written notice of termination or nonrenewal of its franchise pursuant to division (D) of section 1333.85 of the Revised Code, the distributor shall provide the successor manufacturer with the three previous years of financial statements and other relevant and reasonably necessary financial information regarding the diminished value of the distributor's business. The distributor and successor manufacturer shall negotiate in good faith to determine the diminished value of the distributor's business, and the successor manufacturer shall pay the distributor for that diminished value.

(2) If the distributor and successor manufacturer are unable to negotiate in good faith or are unable to resolve the distributor's diminished value within ninety days of the date that notice of termination is given, either party may bring an action in the court of common pleas of the county in which the distributor's principal place of business in this state is located within ninety days of the date that notice of termination is given, except that the parties may mutually agree in writing to extend that ninety-day period.

(3) The court of common pleas shall determine the diminished value of the distributor's business within ninety days after the action is filed. The successor manufacturer shall pay the distributor the amount of diminished value the court determines. Upon payment of that amount by the manufacturer to the distributor, the successor manufacturer may transfer the brands to a new distributor.

(4) Either party may appeal the decision of the court of common pleas to the court of appeals. The filing of an appeal does not stay the successor manufacturer's payment of diminished value to the distributor or the successor manufacturer's transfer of brands to a new distributor.

(5) If the court is unable to determine the diminished value of the distributor's business within ninety days after the action is filed, the court shall order the successor manufacturer to pay its last good faith offer to the distributor on the ninety-first day after the action is filed and shall treat the manufacturer's application for that order as a request for emergency injunctive relief without the need for any showing of irreparable harm. Upon payment of the amount of its last good faith offer to the distributor, the successor manufacturer may transfer the brands to a new distributor. After the successor manufacturer's payment of that amount to the distributor and its transfer of the brands, the court shall determine the diminished value of the distributor's business. The successor manufacturer shall pay the distributor the amount of the diminished value determined by the court less the amount of its last good faith offer previously paid pursuant to division (B)(5) of this section.

(6) The parties by mutual agreement may extend or shorten any of the time deadlines set forth in this section.

Effective Date: 2008 HB420 12-30-2008; 2008 SB320 04-07-2009

1333.86 Distributor to maintain adequate physical facilities and personnel.

During the effective period of a franchise, the distributor shall maintain adequate physical facilities and personnel so that the product or brands of the manufacturer are at all times properly represented in the sales area of the distributor, the reputation and trade name of the manufacturer are protected, and the general public receives adequate servicing of the products or brands of the manufacturer. The distributor shall at all times act in good faith.

Effective Date: 07-26-1974

1333.87 Liability for violation.

Any manufacturer or distributor who directly or through an officer, employee, or agent violates sections 1333.82 to 1333.86 of the Revised Code is liable to the party injured by such violation for all reasonable damages sustained by the party that are the proximate result of the unlawful act of the manufacturer or distributor, his officer, employee, or agent. An action to recover such damages and for other relief may be brought only in the common pleas court in the county in which the distributor's principal place of business in this state is located.

Effective Date: 05-20-1992

1333.91 Pyramid sales plan or program definitions.

As used in sections 1333.91 to 1333.94 of the Revised Code:

(A) "Pyramid sales plan or program" means any scheme, whether or not for the disposal or distribution of property, whereby a person pays a consideration for the chance or opportunity to receive compensation, regardless of whether he also receives other rights or property, under either of the following circumstances:

(1) For introducing one or more persons into participation in the plan or program;

(2) When another participant has introduced a person into participation in the plan or program.

(B) "Compensation" means money, financial benefit, or anything of value. Compensation does not include payment based upon sales made to persons who are not participants in a pyramid sales plan or program, and who are not purchasing in order to participate in the plan or program.

(C) "Consideration" does not include:

(1) Payment for sales demonstration equipment and materials furnished at cost, whereby no profit, commission, fee, rebate or other benefit is realized by any person in the sales plan, for use in making sales and not for resale;

(2) Payment for promotional and administrative fees not to exceed twenty-five dollars when computed on an annual basis.

(D) "Participant" means a person who purchases, proposes, plans, prepares, or offers the opportunity to take part in, or advance into, a pyramid sales plan or program.

Effective Date: 09-27-1974

1333.92 Prohibition.

No person shall propose, plan, prepare, or operate a pyramid sales plan or program.

Effective Date: 09-27-1974

1333.93 Contract void - civil action.

Any contract made in violation of section 1333.92 of the Revised Code is void. Any person who has paid consideration for the chance or opportunity to participate in a pyramid sales plan or program may recover, in a civil action, the amount of the consideration paid, together with reasonable attorney fees, from any participant who has received compensation under either of the following circumstances:

(A) For introducing the person into participation in a pyramid sales plan or program;

(B) When another participant has introduced the person into participation in a pyramid sales plan or program.

Effective Date: 09-27-1974

1333.94 Restraining orders.

Whenever it appears that a person is violating or about to violate section 1333.92 of the Revised Code, the attorney general may bring an action in the court of common pleas to enjoin the violation. Upon a proper showing, a temporary restraining order, or a preliminary or permanent injunction shall be granted without bond. The court may impose a penalty of not more than five thousand dollars for each day of violation of a temporary restraining order or preliminary or permanent injunction issued under this section.

Effective Date: 09-27-1974

1333.95 Additional remedies.

The remedies in sections 1333.91 to 1333.95 of the Revised Code are in addition to remedies otherwise available.

Effective Date: 09-27-1974

1333.96 [Repealed].

Effective Date: 09-26-2003

1333.99 Penalty.

(A) Whoever violates sections 1333.01 to 1333.04 of the Revised Code is guilty of a minor misdemeanor.

(B) Whoever violates section 1333.12 or 1333.71 of the Revised Code is guilty of a misdemeanor of the fourth degree.

(C) Whoever violates section 1333.36 of the Revised Code is guilty of a misdemeanor of the third degree.

(D) A prosecuting attorney may file an action to restrain any person found in violation of section 1333.36 of the Revised Code. Upon the filing of such an action, the common pleas court may receive evidence of such violation and forthwith grant a temporary restraining order as may be prayed for, pending a hearing on the merits of said cause.

(E) Whoever violates division (A)(1) of section 1333.52 or section 1333.81 of the Revised Code is guilty of a misdemeanor of the first degree.

(F) Whoever violates division (A)(2) or (B) of section 1333.52 of the Revised Code is guilty of a misdemeanor of the second degree.

(G) Except as otherwise provided in this division, whoever violates section 1333.92 of the Revised Code is guilty of a misdemeanor of the first degree. If the value of the compensation is one thousand dollars or more and less than seven thousand five hundred dollars, whoever violates section 1333.92 of the Revised Code is guilty of a felony of the fifth degree. If the value of the compensation is seven thousand five hundred dollars or more and less than one hundred fifty thousand dollars, whoever violates section 1333.92 of the Revised Code is guilty of a felony of the fourth degree. If the value of the compensation is one hundred fifty thousand dollars or more, whoever violates section 1333.92 of the Revised Code is guilty of a felony of the third degree.

Amended by 129th General AssemblyFile No.29, HB 86, §1, eff. 9/30/2011.

Effective Date: 09-26-2003; 2008 SB171 09-11-2008