Carlin, Edwards, Brown &Howe, PLLC
Attorneys & Counselors at Law
 
MICHIGAN HOSPITALITY LAW NEWSLETTER
Spring 2010
In This Issue
New CEBH Website Coming Soon
Smoking Ban Checklist
State Smoking Ban Website
Reminder: Renewal Applications Due April 30th
Prepare Now for Outdoor Events
Thank You for 35+ Years of Service with the MLCC

We would like to salute, and sincerely thank the MLCC personnel who have recently retired or who will be retiring in the coming months.  We would like to especially acknowledge Ken Wozniak and Deb Lonskey for their 35+ years of service with the MLCC.  We wish you both the very best in this next chapter of your life, and thank you for all that you have done for our firm, our clients, and the hospitality industry over the years.

New CEBH Website
& Blog Coming Soon! 

Coming soon to a computer near you will be  a completely overhauled and  improved  Carlin, Edwards, Brown & Howe, PLLC website.  The site is under construction now, and will feature updated developments and changes in the law, a hospitality law blog, and a Q & A function where you can submit hospitality law questions that will be answered in real time.  The site should be live in May, and will be the ultimate resource for the  Michigan hospitality industry.

Congratulations to our Clients on Their Recent Openings & 

 License Transfers 
 
December '09 - March '10
 
 Los Tres Amigos

(Michigan Center)

 

Causeway Bay Hotel

(Lansing)

 

Toby Keith's I Love

 This Bar & Grill

(Auburn Hills)

 

Ren Cen 4 Theatres

(Detroit)

 

LimeLight Sports Pub & Grill 

(Rochester)

 

Alpine Oven

(Gaylord)

Carlin, Edwards, Brown & Howe, PLLC 2010. 
 All rights reserved.
 This Newsletter provides general information and does not constitute legal advice in any way. 

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2010 Will Be a Year of Change for Michigan's Hospitality Industry
 
Spring is upon us, and the Tigers opening day is just weeks away.  With that said, 60 degree weather last week was trumped by flurries over the weekend - that's Michigan!  We have seen an increase in transfers and new developments so far this year, and believe it or not we are projecting 2010 to be a growth year for the hospitality industry in Michigan.  We are seeing more transfers and openings than we did in the first quarter of 2009, and we hope that this trend continues for the remainder of the year.  2010 will be a year of change for the hospitality industry in Michigan.  Here's our take of what's on tap:
 
   The Michigan smoking ban goes into effect on May 1, 2010, which will   be a challenge for many of our clients, but others are projecting an influx of new customers because of the ban.  Only time will tell the real economic effect of this legislation.
 
   Michigan's liquor license quotas of 1 Class C license for every 1,500 residents and 1 SDD license for every 3,000 residents will be reset once the 2010 Census is finalized.  Our state's population has certainly decreased the past 10 years, which means there will be a decrease in the number of quota licenses available in the coming years.
 
  National health care reform and card check legislation have been proposed in D.C......stay tuned.
 
  Michigan will elect a new governor in 2010, which may have an impact as to the role, size, and function of the Michigan Liquor Control Commission. 
 
  Liquor license values are in flux.  As more and more establishments close we are seeing the supply of available licenses increase and resale values plummet.  It will be interesting to see if the decrease in quota licenses will increase the resale values of existing licenses, or if license values will continue to fall.
 
  The MLCC will continue streamlining its processes and updating its forms, which will hopefully lead to more efficiency and transparency in the licensing process.  Any efficiency realized however may be offset by the continued "brain drain" at the MLCC, along with the increase in the number of mandated furlough days.  State budget constraints have incentivized many key personnel at the MLCC to retire the past few months, and we expect that trend to continue throughout 2010.  We may also see an increase in the number of required furlough days for state employees this year.

We will continue to monitor these issues throughout the year, and stand ready to assist you in navigating your hospitality business through these changes as they develop.

John B. Carlin, Jr.
Scott D. Edwards
Michael J. Brown
J. Patrick Howe
(Sample Sign)
No Smoking

Smoking Ban Compliance Checklist

 

Public Act 188 of 2009 (the "Act") prohibits smoking in all food service establishments (FSE) on May 1, 2010.  An FSE is a place in which food or drink is prepared for direct consumption through service on the premises or elsewhere, including establishments that only serve beverages such as taverns, bars, cocktail lounges, or nightclubs.  To be in compliance with the Act on May 1st, an FSE must take the following actions:

  • Clearly and conspicuously post "no smoking" signs or the international "no smoking" symbol at the entrances to and in every building or other area "where smoking is prohibited"
  • Remove all ashtrays and other smoking paraphernalia from areas "where smoking is prohibited"

Once the Act is in effect, a person who owns, operates, manages, or is in control of an FSE must make reasonable efforts to prohibit individuals from smoking in an FSE.  The "reasonable effort" mandated by the Act includes the following actions: 

  • Inform individuals smoking in violation of the Act that they are in violation of state law and subject to penalties
  • Refuse to serve an individual smoking in violation of the Act
  • Ask an individual smoking in violation of the Act to refrain from smoking
  • If the individual continues to smoke after you have asked him or her to refrain from smoking, ask him or her to leave the food service establishment

The Michigan Department of Community Health will enforce the Act, and will engage local health departments to assist with enforcement efforts.  An individual who violates the Act, which can either be an individual smoker, or a person who owns, operates, manages, or is in control of a food service establishment, is subject to a civil fine of not more than $100.00 for a first violation, and not more than $500.00 for a second or subsequent violation.  In addition to these fines, a local health department officer may issue an order to cease food service operations if the FSE does not correct a violation of the Act within 2 days of receiving a violation order from Department of Community Health or local county health department.  An FSE can successfully defend alleged smoking violations if the owner, operator, manager or person in control of the FSE, can attest through a sworn affidavit subject to penalty of  perjury, that he or she made a good faith effort to prohibit smoking in the FSE by complying with the mandates of the Act.  FSEs are fortunate to have the ability to assert this affirmative defense in such violation actions.  Therefore it is critical that FSEs take the initial steps to comply with the Act, and make "reasonable effort" to enforce the Act in the operation of their business.

Michigan Department of Community Health Launches Smoking Ban Website

 

The Michigan Department of Community Health recently launched a website that answers questions related to the interpretation, implementation, and enforcement of the state Smoking Ban, which goes into effect on May 1, 2010 - www.michigan.gov/smokefreelaw .  Here you can find a Frequently Asked Questions Page, a Guide for Business Owners, and a Compliance Checklist for Business Owners.  The website also posts the Exemption Affidavits that must be filed by June 1, 2010 for a Tobacco Specially Retail Store or Cigar Bar to qualify for an exemption from the smoking ban.  We are currently processing a number of exemption applications on behalf of our clients, and would be happy to discuss the application process and requirements with you.  Please call Patrick Howe at (248) 816-3175 if you have any questions regarding the smoking ban, or the process for seeking an exemption. 
Reminder:  MLCC Renewal Applications Due April 30th
 
Prepare Now For Your Summer Outdoor Events

The weather is finally turning here in Michigan, and it's time to think summer!  Warm weather can mean more revenue for many restaurateurs, as patios can sometimes double an establishment's seating capacity in the summer months.  Don't forget however, that if you have made any changes to your patio or installed a new patio this year, you will need the approval of the Michigan Liquor Control Commission and your local police department.  To get the application process started you will need a floor plan of your patio showing the  exterior dimensions, entrances/exits, and a detailed description of the barrier enclosing your patio.  The barrier must be at least 3 ft. high, but does not necessarily need to be a fence.  Many clients have used planter boxes, stone walls, nylon stations, or a combination of these barriers so that the required barrier is consistent with the overall look and feel of the patio.  Like all liquor license applications, you will be required to verify the source of financing for any capital improvements made to the licensed premises.
 
Prior approval is also needed for the temporary outdoor service of alcoholic beverages.  Whether you are hosting a special event in your parking lot for the 4th of July, or catering a charity event with the service of alcohol; you will either need to obtain a Special License (f/k/a Charity License  or 1-Day License), or a Temporary Outdoor Service Permit.  The MLCC has recently implemented a $70 fee for each temporary permit application.  The application process for these activities typically takes about 30 days.  There may be additional approvals required from your municipality and health department for using tents, stages, generators or temporary food service stations in connection with these events, so it is wise to start the application process well before your scheduled event.  Our firm obtains approvals for numerous outdoor events each summer, and we have developed reasonable fixed rates for handling these matters.  Give us a call today to get your outdoor event moving before it's too late
Upcoming Industry Events 
 

ULI Detroit - Metro Marketplace

A Public-Private Partnership Forum

March 24, 2010

Oakland University

2200 N. Squirrel Rd.

Rochester, MI 48326

http://detroit.uli.org/Events.aspx

 

ULI Detroit - Young Leaders Social

April 13, 2010

Bookies Bar & Grille

2208 Cass, Detroit, MI 48201

http://detroit.uli.org/Events.aspx

 

MLBA Spring Conference Lobby Day

May 3-4, 2010

Lansing, Michigan

http://mlba.org/page.cfm/13/

 
Pure Michigan Governor's Conference

Driving Tourism 2010

Presented by The Michigan Lodging & Tourism Association

May 6-7, 2010

Grand Hotel, Mackinaw Island, Michigan

http://www.milodging.org/conference

 

Michigan Grocers Association 23rd Annual Golf Outing

Thursday June 17, 2010 - 9:00 AM Shotgun Start

Emerald Golf Course - St. Johns, MI