Brad KaplanAs of Monday, March 23, 2020, Illinois, Ohio, and Kentucky have issued executive orders for the purpose of limiting person-to-person contact to avoid the transmission of the COVID-19 virus. This article summarizes how each of these three states are defining “essential businesses” and “essential services.”


Governor J.B. Pritzker issued Executive Order 2020-10 on March 20, 2020. Section 9 of the order includes in the definition of “Essential Infrastructure” in part the following activities that apply to real estate and construction: construction of food production/distribution facilities; health care facilities; public works facilities; building management; building maintenance; construction and repair of highways, railroads, and other means of transportation; waste and recycling removal; and telecommunications facilities and infrastructure. The order specifically states that it should be interpreted as broadly as possible.

Other important sections of the order include:

  • Section 12(a) permits stores that sell food and pharmaceuticals to remain open.
  • Section 12(e) permits gas stations, auto supply and repair, and bicycle shops to remain open.
  • Section 12(f) permits all financial institutions and title companies to remain open.
  • Section 12(g) permits hardware stores to remain open.
  • Section 12(h) permits the following “critical trades” to continue working: electricians, plumbers, cleaning and janitorial services, HVAC installers and repair, painting, and moving/relocation service providers.
  • Section 12(n) permits businesses that supply essential businesses may remain open.
  • Section 12(r) permits professional services providers (lawyers, accountants, insurance brokers/agents) and real estate services to remain open.
  • Section 12(v) permits hotels and motels to remain open, but food can only be sold for delivery or carry out.

Click here for the full text of the order.


Governor Michael DeWine and the Ohio Department of Health issued a “Stay at Home” order on March 22, 2020, that became effective on March 23, 2020, at 11:59 p.m. In Ohio, all businesses are required to close to the public with the exception of “Essential Businesses & Operations.” Section 9 of the Ohio order permits the same activities as Section 9 of the Illinois order.

Other important sections of the order include:

  • Section 12(j) permits hardware stores to remain open.
  • Section 12(q) permits building materials, hardware, paint and other construction material distributors and sellers to remain open.


Governor Andy Beshear issued Executive Order number 2020-246 on March 22, 2020, that became effective on March 23, 2020, at 8 p.m. The Kentucky order mostly focuses on businesses that are life sustaining (food, pharmaceuticals). The Kentucky order permits distributors and sellers of building materials, equipment, and supplies to remain open. The Kentucky order is silent as to construction, manufacturing, distribution, and transportation industries.

A comprehensive federal order or directive would be useful now so that there is commercial consistency from state to state. Until such a federal order is issued, you should check each state’s website for updates on what is considered a permitted activity and what is not.

Ulmer’s Real Estate Practice Group is closely monitoring developments related to the COVID-19 pandemic and is available to provide strategic counseling and advice as this crisis continues to unfold. Please reach out to our attorneys if you have any questions.

Kristin W. BooseOn March 20, 2020, the CRE Finance Council hosted a great conference call entitled, “The Impact of COVID-19 on the Commercial and Multifamily Real Estate Property & Finance Markets.” Like many of us in the commercial real estate world, I’m anxious to get my arms around what impact, both short and long term, the COVID-19 pandemic will have on our real estate markets, including real estate finance, a focus of my practice. Spoiler alert – we don’t truly know. These experts provided us with their thoughts and observations, discussing both the lending and debt markets, including macroeconomic and microeconomic aspects. Here are important takeaways I learned concerning COVID-19’s impact on lending and the various real estate sectors:

  • Commercial real estate loans substantially on their way to closing are likely to get done, unless of course the property or portfolio of properties that is the subject to finance is in an especially hard-hit area (e.g., hospitality) or the closing of the loan becomes administratively difficult (e.g., closing of recording offices). The speakers representing the bank lending side of the call indicated that they’d continue to scout lending opportunities, however, it seemed clear to me there’s a good chance pencils are down or are being slowed on new borrowings until the smoke clears on the COVID-19 crisis.
  • April 1 will be the lending market’s first true dose of reality. Why? Because monthly loan payments are often due by borrowers on the first of the month or soon thereafter, and this will be the first payment date since COVID-19 really gripped our nation and economy. Part and parcel of those debt payments is whether tenants for tenanted properties (think multifamily, office, retail) can make, delay, or withhold their monthly rental payments. Rental payments are the life blood of these asset classes.
  • The speakers then discussed the issues and challenges faced by certain real estate asset classes:
  • All assets classes face the same central and crucial question: What is a property’s “true value”? Commercial real estate lenders lend on property value and property income. If these central tenants of lending can’t be realistically determined, quality lending decisions can’t be made. A main concern is just how long, wide, and deep COVID-19 will reach. Are we talking weeks or months or longer? Will a property’s value change as a result of COVID-19, and if so, just how far will that value fall? Where is bottom?
  • All tenanted properties: The big question is how rental streams will be impacted, now and over time, depending on the length of the crisis and ability for the applicable sector to “bounce back.” Will tenants continue to pay rent, or will that rent stream be interrupted in some manner (abated, delayed, or stopped altogether)? On the multifamily side, people are likely staying put. People may be dealing with a situation where their lease has ended but is held-over due to some aspect of the COVID-19 situation (thereby decreasing turnover and/or new rentals) or situations where a landlord is restricted on or delays evicting a nonpaying tenant.
  • Properties under construction: Properties under construction or renovation are facing work stoppages by their contractors and subs as well as supply chain shortages. In addition, I also have concern over the people and resources it takes to create and execute on all the various layers of completing construction loan draws. These present a whole host of issues to consider, including delay of construction, delayed payments, and delayed time to market.
  • Industrial: Supply chain disruptions are causing tremendous issues for industrial sites, in addition to decreased workforces on sites.
  • Office: I thought the speaker’s comments on the office property sector were interesting, which were – in so many words – what if this remote work gig works too well and employers actually find benefits to having a home workforce, in part or in whole? How would this impact the office market? This made me think about a conversation between my husband and our neighbor, both physicians. (No worries, the conversation was from across the street so social distance was respected!) They were comparing notes about how COVID-19 has caused their practices – almost overnight – to switch to telemedicine and “virtual visits.” Very few patients were walking in their doors this past week. They both feel this COVID-19 outbreak will dramatically shift the practice of medicine, making telemedicine and “virtual visits” more in the norm. If true, think about how this may impact need for medical office space.
  • Student Housing: Similar to the remote work aspect of the office sector, a similar comment was made about the student housing sector. We’ve seen colleges and universities across the nation switch to online, offsite classes. Assuming this works well, could there be less need for student housing in the future?
  • Hotel/Hospitality and Retail: These sectors are the most worrisome. We are now seeing and hearing in our daily news headlines that malls and retail stores are closing and travel is being discouraged and even restricted. The experts feel lending will halt entirely for these areas with exceptions for special situations.

Not surprisingly, banks and servicers are anticipating a rise in real estate assets going into special servicing (aka “workout”) in the future. I suppose the question is: will it be a wave or a tidal wave? Despite the gloom and doom feeling of late, there was good news. That good news is: the lessons of and the institutional changes resulting from the “Great Recession” (December 2008-June 2009) vastly improved our nation’s financial infrastructure. We are on solid (or at least much better) footing to weather this COVID-19 crisis. In addition, despite it being 10 years ago, the “Great Recession” is still a recent memory for many of us, and importantly, our financial industry leaders. As result, I am hopeful we have cool hands at the economic controls as we travel through these turbulent times.

The parting words on the call were an acknowledgment to meet back in a few weeks to reassess. At that time, we’ll have a better idea on the timeline and reach of the virus’ impact on our nation. We will know better how well we’ve prepared (and washed our hands, not touched our face, and kept our social distance, etc.). Until then, keep safe and wash those hands!

I attended the recent ICSC Regional Law Conference in Columbus, Ohio. It was a great conference where I reconnected with many great colleagues – including my son Kendall who is only in his second year practicing law, but recently took advantage of his Dad in a lease negotiation where he represented an escape room tenant and his Dad represented the landlord.

Richard Tranter’s presentation on the need for retail to be experiential was great. But Kendall explained it best when he said “a successful retail experience is one where people want to post an Instagram picture about the experience.” I am definitely stealing that.

The best presentation was actually about cannabis, which is a fast-growing retail industry with very interesting legal issues. As you can imagine, attendance for this presentation was high. (ha!) Continue Reading Fix Your Lease Even if You Can’t Fix the Weather

University of Cincinnati Law Professor Sean Mangan does not hate many things, but ‘and/or’ has to be first on the list – along with whomever might be playing his Irish that weekend. I had the pleasure of taking multiple drafting classes with him several years ago, but I honestly never quite understood the depth of his anger towards the use of ‘and/or’ (along with “thereof”, “henceforth”, “hereto”, and the like). However, as it turns out, he is in very good company, as many judges and legal drafters seem to have some unresolved anger issues with this phrase as well.

The generally agreed upon meaning of “X and/or Y” is “X or Y or both”. That is a fine definition, but the problem is that the lack of clarity on the surface of the expression can allow opposing counsel to deliberately misinterpret whatever provision is in question in their client’s favor. If “X or Y or both” is what you mean, then just write what you mean! Take a look at how judges and style guides view the use of ‘and/or’: Continue Reading A Plea And/Or Request: Stop Using And/Or

I just attended the BDO Restaurant CFO Roundtable where I presented the Top 10 Most Important Legal Provisions of a Restaurant Lease. Arranged by Dustin Minton and Floyd Roades of BDO, the Roundtable brings together restaurant industry executives to learn about industry trends. BDO is the industry leader when it comes to accounting services for restaurants. I was very impressed with every BDO person I met and I loved their new office. Wide open spaces designed to encourage collaboration. The best space was the employee dining room which had a ping pong table in it and an attached balcony overlooking Great American Ballpark.

I won’t recreate the whole presentation here, but I will say that the top most important lease provision (according to me) is the construction exhibit/clause. Between chargebacks, bonding requirements, security deposits, impact fees, requirements to work before permits are received, equipment requirements and design requirements, a tenant’s construction budget and opening schedule could be significantly affected. And these things are never covered in the LOI and typically are not even presented until the end of the lease process. Continue Reading Life is Like a Restaurant

Relationships matter.

Seems obvious, but not always understood. However, this past week Scott Kadish, Alex Conn and I experienced firsthand the importance of this simple principle.

Last week we attended the ICSC U.S. Shopping Center Law Conference in San Antonio, Texas. For 4 days we attended educational sessions (we actually led the discussion in 2 of those), visited with clients and colleagues, renewed friendships and made new ones. There were about 1,350 attendees at this conference, the programming was terrific, and opportunities were abundant.

Clients and lawyers with whom we may only have an electronic connection for most of the year were suddenly and delightfully in the same physical place as us for 4 or 5 days. It was during this face-to-face time that I realized how important it is to actually know our clients and the folks who sit across the table from me the rest of the year. Continue Reading Relationships Matter

“Street Food” has generally referred to prepared food items ready for immediate consumption sold on the street or in a public space from a food cart, food truck or similar moveable station. The connotation was cheaper fast food.

Today, “street food” is a unique, trendy selling point. There is Piada Italian Street Food that brands its entire restaurant chain this way. It’s the same with Tortilla Mexican Street Food in Columbus, Ohio. At Blue Agave in Springdale, Ohio, a local Mexican Restaurant that I frequent, they have Street Tacos on the menu. Quan Hapa in Over-the-Rhine in Cincinnati advertises itself as Asian Street Food. The whole notion of street food has changed to a more favorable connotation. It is nostalgic, bringing together the idea of unique, freshly-cooked food served in a social setting.

Fast food too has evolved with the idea of “fast casual”. This is a whole new category between fast food and casual dining. It seems “fast food” still has a poor connotation for quality, making it appear that the move toward “street food” or “fast casual” may just be a way to avoid being labelled “fast food”. Whatever the ‘label’, I have to say I love Piada, Tortillas, Blue Agave, Quan Hapa, and eating at food trucks. But I also love The Waffle House, so maybe you have to consider the source.

World Famous Las Vegas Nevada. Vegas Strip Entrance Sign in 80s Vintage Color Grading. United States of America.

I just returned from the National Restaurant Association Financial Officers and Tax Executives Conference in Las Vegas. I participated on a Real Estate Leasing Trends panel with Adam Schwegman, head of the eat/drink department of General Growth Properties and George Galloway of Next Realty Mid-Atlantic, with Ryan Cupersmith of Ernst & Young as our moderator. While there, I was able to soak in some knowledge myself. Here are some of the highlights of what I learned:

  1. Restaurants may be the new anchor in retail developments. A center has to provide an “experience” to motivate consumers to shop at the center as opposed to sitting home and buying over the internet. Restaurants have become a great way to create an experience and draw customers in.
  1. Restaurants are immune to internet competition. Last time I checked, you can’t buy a prepared meal over the internet that comes with a server and clean-up crew, so restaurants appear to be safe from internet competition, at least for now.

Continue Reading ‘Lease’ Vegas

It has an urban, industrial feel. It has a live DJ. It has a festive atmosphere. It has a patio. And, in addition, to the tacos, gorditas, crunch wraps and chulapas that you’ve come to love and expect, it has beer!Taco Bell Cantina

It’s the new Taco Bell Cantina which opened today at 200 Euclid Avenue on Public Square in downtown Cleveland. Lines stretched out the door at opening time today but service was provided smoothly and quickly by the friendly and outgoing employees.

Situated in the long vacant Cadillac Ranch space in the old May Company building, Cleveland’s Taco Bell Cantina joins other Cantina restaurants operated by Taco Bell in San Francisco, Austin, Chicago and on the Las Vegas strip.

The first Taco Bell Cantina opened in Chicago’s Wicker Park Neighborhood in September 2015. Less than a dozen currently exist and only five other Taco Bell Cantinas serve alcohol. Continue Reading Ulmer Client, Taco Bell, Opens Cantina in Downtown Cleveland

I have previously commented about the similarity in service between a restaurant and law firm (see prior blog). One area where restaurants differ from other businesses is the issues presented in a retail lease.

For Lease Sign in window

A restaurant lease involves unique issues which must/should be dealt with, some more monetarily significant than others. But don’t underestimate the annoyance factor. If any of these issues are not dealt with appropriately, you can bet someone will be more than a little annoyed.

  1. Impact Fees – Because restaurants are typically big water consumers, new build locations may charge a significant tap-in fee. In some cases, there may be various impact fees. Depending on leverage, a restaurant may be able to get the landlord to pay this as part of its development costs. But even if the landlord will not pay the fee, the restaurant needs to know the exact amount of the fee so that it can correctly prepare its budget.
  1. Trash Removal – There are many different ways a landlord can charge for trash removal. Does the restaurant have its own dedicated dumpster? Does the landlord mark up the bill? Is there a choice on who to use as the hauler? I have heard of landlords going to a weight-based system where a tenant gets billed for actual disposal, but have not actually seen one in place. In any event, these details need to be determined before the lease is signed.

Continue Reading A Restaurant Lease is a Unique Dish