Category: Liquor Licensing

DANBROOK ADAMS RAYMOND PLC, CELEBRATES FIVE YEAR ANNIVERSARY

Posted on by DAR Law

Boutique Law Firm Kicks Off Year Five with A New Location

This month, Danbrook Adams Raymond PLC, DAR Law, celebrates its five-year anniversary of bringing peace of mind to individuals, families, and businesses in Northern Michigan in their practice areas of Employment and Labor Law, Employer Defense and Litigation, Liquor Licensing and Regulation, and Estate Planning and Administration.

After practicing for years in larger firms, DAR’s three attorney owners, Cortney Danbrook, Janis Adams, and Lindsay Raymond, decided their clients deserved more.

“Five years ago, we opened a boutique law firm specifically designed to offer clients the legal experience and skill they would expect from a large firm, but with a down-to-earth, authentic, and personal touch,” shared Cortney Danbrook, DAR partner who specializes in providing advice and counsel to businesses, individuals, and families in the areas of estate planning and administration, liquor licensing and regulatory compliance.

Women of DAR Law Knew their Approach, Experience, and Skill Would Set Them Apart

“We are honored to stand out, not only because we are a women-owned law firm, but also because we have years of experience (55 years combined) in highly focused areas of the law,” said Janis Adams, employment, and labor law partner at DAR. “We’re proud and humbled to be ‘THE’ legal resource in our practice areas.”

The boutique law firm is celebrating this anniversary milestone with a new office location as well. With the goal to better serve its clients, DAR has moved to a new office located at 625 Second Street (Second and Division). The new location features ample and easily accessible private parking on-site, as well as a larger and more welcoming space to counsel and collaborate with their clients.

DAR Law location“We’re excited about our growth and look forward to serving and expanding our client-base in this new space,” said Lindsay Raymond, employment, and labor law partner at DAR.

Your Legal Resource for Peace of Mind

DAR Law extends a special note of gratitude to their legal assistant, professional advisors, and service providers for all their support, and their clients who have allowed them to stand by their side, guide them with their legal issues, and advocate on their behalf for the last five years.

“As business owners, we know the importance of a great team and community. We cannot thank you all enough for embracing us and continuing to trust us to be your legal resource for peace of mind.”

Learn more at darlawyers.com or call 231.714.0157 to set up an appointment.

Covid-19 Whistleblower Litigation Is Surging:

Posted on by DAR Law

Workplace Safety Compliance Reduces Employer Exposure

In Michigan, an employee alleging whistleblower retaliation pertaining to COVID-19-related workplace safety issues may file an action in court pursuant to Michigan’s Whistleblower Protection Act (WPA) or a complaint with Michigan’s Occupational Safety and Health Administration (MIOSHA).

From Jan. 30, 2020 to March 17, 2021, whistleblower retaliation cases represented the largest category of COVID-19-related litigation filed in Michigan courts, accounting for 37% of such litigation and ranking Michigan sixth in the nation for whistleblower filings (fisherphillips.com/covid-19-litigation).

During the first six months of the pandemic, the U.S. Department of Labor Office of Inspector General found that approximately 30% more OSHA complaints were filed when compared with the same period in 2019, with 39% of such complaints directly linked to COVID-19.

A comparable increase in COVID-19-related complaints was also seen in state OSHA-certified programs. MIOSHA recently indicated that it plans to extend its COVID-19 Emergency Rules (effective Oct. 14, 2020 to April 14, 2021) through September 2021, which include requirements for a COVID-19 Preparedness and Response Plan, infection prevention and health surveillance, industry-specific protocols, training, and specific requirements for masking, social distancing, and remote work when feasible.

With more than 100 million COVID-19 vaccinations given and recent statistics showing a decline in the number of cases, hospitalizations and deaths, many employees remain concerned about their risk of exposure in the workplace, while others see such progress as a reason to relax masking, social distancing and other mitigation efforts. These varying perspectives create a unique challenge for employers who must continue to enforce the MIOSHA Emergency Rules and avoid the risk of exposure to liability from whistleblower complaints.

The Whistleblower Protection Act (WPA)

An understanding of how the WPA works will assist employers in reducing their exposure to retaliation claims. The purpose of the WPA is to protect the public by protecting the reporting employee from subjection to adverse employment actions. As such, the WPA is liberally construed to favor the reporting employee who it seeks to protect.

An employer with one or more employees is subject to the WPA. The circuit court has exclusive jurisdiction over WPA actions, regardless of the amount in controversy, and a plaintiff bringing a WPA claim has the right to a jury trial.

To establish a prima facie WPA case, the employee must that show that s/he: 1) engaged in a protected activity; 2) was subjected to an adverse employment action; and 3) a causal connection existed between the protected activity and the adverse employment action. A “protected activity” occurs when an employee reports or is about to report an employer’s violation or suspected violation of law, regulation, or rule to a public body, or participates in an investigation related to a whistleblower complaint held by a public body or in a court action.

The WPA protects employees who, in good faith, make or are about to make a report of a violation even if there is no actual violation of law, but does not protect employees who knowingly make a false report of a violation. The WPA defines “adverse employment action” more narrowly than other state discrimination laws, requiring the employee to demonstrate “termination, threats, or other discrimination against an employee regarding compensation, terms, conditions, location, or privileges of employment.”

To establish the existence of a “casual connection” between the protected activity and the adverse employment action, the employee must show that the employer knew of or believed that the employee engaged in a protected activity. Merely showing a close temporal connection between the two events, without more, will not establish a causal connection.

The remedies available to a prevailing plaintiff include “reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of these remedies.” In addition, a prevailing plaintiff may collect emotional distress damages by proving they are related to the WPA violation, and be awarded the costs of litigation, which include attorney fees and witness fees.

MIOSHA Retaliation Complaints

Under MIOSHA’s anti-retaliation provisions, an employee has the right to file an administrative complaint with the agency that is timely filed within 30 days of the event or occurrences, and stems from a safety and health issue. Specifically, MIOSHA protects an employee who “exercises a right afforded under the act on behalf of themselves or others and who files a complaint under, institutes a proceeding under, or testifies or is about to testify in a proceeding brought under the act from retaliatory action or discrimination.”

The agency will investigate the complaint and issue a determination, which is subject to appeal before an administrative law judge with the Michigan Office of Administrative Hearings and Rules, who issues the final decision.  An employee who seeks to file an action under the WPA when the employer’s wrongful conduct also violates the MIOSHA, is not required to file with MIOSHA.

Best Practices for Reducing Exposure to Whistleblower Claims

Employers can reduce their potential exposure to COVID-19-related whistleblower claims by ensuring their COVID-19 Preparedness and Response Plan is compliant and evenly enforced. In this regard, on March 12, 2021, OSHA published a National Emphasis Program in effect through March 12, 2022, focusing on workplace COVID-19 compliance, including increased announced and unannounced site inspections.

Additional employer best practices include encouraging employees to report health and safety concerns, training management on receipt of safety complaints and investigation, updating anti-retaliation policies, and working with legal counsel to ensure compliance and reduce risk of exposure to liability.

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Janis L. Adams of Danbrook Adams Raymond PLC is an experienced employment law attorney and business owner. You can reach her at jadams@darlawyers.com

This article was featured in the April 2021 issue of the Traverse City Business News.

From Vine To Pure Michigan Wine: How Growers, Producers And Retailers Are Regulated

Posted on by DAR Law

Our region’s gently rolling topography is spotted with endless rows of grape trellises winding toward the turquoise lakeshore. Each year, more of our agricultural landscape continues to be converted to grape production.

Why, you ask? You guessed it. Wine. Pure Michigan wine. It takes a lot of grapes to produce the roughly three million gallons of wine bottled here in Michigan. But, just how do all those grapes make their way into bottles of wine and who controls that?

The Michigan Liquor Control Commission (MLCC), in conjunction with the Alcohol and Tobacco Tax and Trade Bureau (TTB), is tasked with regulating the manufacture, import, possession, transportation and sale of liquor in Michigan. Michigan maintains a three-tier system of alcohol distribution consisting of manufacturers, retailers and distributors. Almost anyone in the business of manufacturing, importing, possession, transporting or selling alcoholic beverages in the state of Michigan must be licensed through the MLCC and the TTB. So where do our local vineyards, wineries and wine shops fit in?

Got Grapes?

Vineyards are where it all begins. The quality of wine produced depends heavily on the quality of grapes used in that wine. So, does the MLCC really regulate how grapes are grown? The answer is no, as long as the grape grower’s role is strictly limited to growing and selling grapes in their natural state. Since grapes on the vine have not yet been fermented, they are not considered “alcohol,” which keeps grape growers out of the purview of the MLCC and the TTB. (They are subject to other rules and regulations imposed by the Michigan Department of Agricultural and Rural Development.) Additionally, since wine producers want the highest quality product and demand certain grape varietals, agreements between the grape grower and the winery are put in place to lay out specific terms not only for the purchase of grapes, but also expectations for strict farm management practices.

So, You Want to be a Winemaker

Maybe being the mastermind behind crafting world-class wine is your calling. Becoming involved in the actual production of wine triggers licensing and regulation of your activities by both the MLCC and the TTB – unless it is only for your own consumption. Most winemakers in Michigan will produce less than 50,000 gallons of wine annually, and therefore fall into the small wine maker category. Obtaining a small wine maker license from the MLCC requires – among other things – compliance with local zoning, approval from the local governmental entity, fingerprinting and background checks, entity documentation, inspection of financial records and the licensed premises, as well as payment of applicable fees. A winemaker is also required to be licensed at the federal level with the TTB, including registration and approval of all wine labels. While a licensed winemaker will have authority to self-distribute to retailers or sell to licensed wholesalers, a separate permit is required for an on-premises tasting room or direct wine sales to consumers.

Have Wine, Will Travel

So vineyards are not your thing, and you do not want to spend hours checking pH and sugar levels during fermentation. Instead, you decide the sale and distribution of wine to licensed retailers (i.e., your favorite local wine shop) is what you’d like to do. Well, just because you are not producing the wine doesn’t mean you can just sell the wine out of the back of your van. The MLCC and the TTB require distributors of wine to be licensed. A wholesale license allows the distributor to purchase wine from a licensed manufacturer for the purpose of reselling that wine to a licensed retailer. Among other requirements, a wholesale licensee is required to be a Michigan resident for at least one year prior; they cannot sell directly to the consumer; all vehicles used to transport the wine require MLCC vehicle decals; and all individuals engaged in the sale, promotion or delivery of wine are required to have a salesperson license. Additionally, wholesalers must enter into written distribution agreements with the winemakers granting the wholesaler a certain sales territory where they can sell that specific brand of wine.

Just Sell It

If relying on Mother Nature to grow grapes stresses you out, you have no room for stainless steel fermenting tanks, and you do not want to drive around selling wine; perhaps selling wine directly to the consumer is right up your alley.  So, can you just start selling wine out of your storefront?  No. The MLCC regulates the retail sale of wine to the consumer, and requires a retailer to be properly licensed.  Convenience stores, grocery giants and specialty markets alike, all must hold certain on-premises or off-premises retail licenses in order to purchase wine from manufacturers or wholesalers for resale to the consumer.  The process for obtaining a retail license from the MLCC is similar to that of licenses in the other tiers; however, choosing the appropriate type of retail license depends on the activities conducted at the retail location.

From the vine, to fermentation, to bottling and careful placement on our favorite store’s shelves, each glass of Michigan wine should certainly be celebrated. The numerous regulations, laws and administrative rules of the MLCC and the TTB touch almost every aspect of winemaking and being able to navigate them is critical in obtaining and maintaining proper licensing. So, if you happen to run into one of our many local and talented grape growers, winemakers, distributors or retailers, please shake their hand. Thank them for continuing their dedication to this region’s economic stability, preservation of our region’s rich agricultural history, and of course for their contribution to the creation of some of the most delicious wines produced worldwide.

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Cortney Danbrook advises business clients on liquor licensing and regulatory compliance and provides specialized counsel to individuals, families and businesses in the areas of estate planning and administration. She can be reached at (231) 714-0163 or cdanbrook@darlawyers.com.

This article was featured in the June 2019 issue of the Traverse City Business News.

Alcohol Delivered to Your Door…Say It Isn’t So!

Posted on by DAR Law

We have become a society of instant gratification and convenience, fueled by technological innovation. Not too long ago if you were craving pizza, you actually had to go pick it up. Then there were those awful, dreaded trips to the grocery store to stock up on food for the week. Enter the Smartphone and the world of mobile apps, and the way retailers reach consumers has been completely transformed.

Today, within minutes you can order your specialty pizza and it is delivered to door with a few swipes across your Smartphone. As you wait for your pizza to arrive, you can send your grocery list to your virtual ‘personal shopper’ who arrives at your doorstep within hours with everything from paper towels to coffee, to fresh fruits and vegetables. While you’re at it, why not sift through dozens of potential suitors within minutes and get a date for Friday night. With all of this newly found convenience at our fingertips, it was only a matter of time before we would ask, “Why can’t I have beer, wine and liquor delivered to my door?”

For years, Michigan entrepreneurs have been eager to pursue alcohol delivery opportunities through partnerships with web-based and mobile app companies such as Saucey, Drizly and Klink, who have operated in other states for several years. Take the alcohol delivery service DrinkDrivers for example. While DrinkDrivers was operating legally under Florida law in 2014, the Michigan Liquor Control Commission halted DrinkDrivers’ operations for noncompliance with Michigan law when the concept was brought to Ann Arbor. At that time, with a few very specific exceptions, delivery of alcohol directly to a consumer was prohibited in Michigan. While you could get just about everything you could think of delivered to you in the comfort of your home, beer, wine and liquor were the holdouts, which meant you actually had to walk or drive yourself to the store to pick up your alcohol – a strange concept, I know.

Last year, the world of alcohol delivery in Michigan changed with the amendment of MCL 436.1203 and the creation of a new Third Party Facilitator License. Welcome to the world of total retail convenience. Now, when you are craving pizza and a nice local craft beer but don’t feel like going out, your favorite pizza joint (if properly licensed) can bring your hot pizza and cold beer directly to you, before you even have time to chill your pint glass.

With a Third Party Facilitator License, the gap between the retailer’s physical location and the consumer’s home can now be filled. A retailer with a Specially Designed Merchant (SDM) or Specially Designated Distributor (SDD) license can now utilize web-based or mobile apps to facilitate home delivery of beer, wine or liquor to their customers through their own employees or a partnership with a Third Party Facilitator. The benefit is two-fold; an opportunity for restaurants, convenience stores and entrepreneurs alike to boost sales, and an avenue to improve public safety by keeping individuals from drinking and driving.

New applicants seeking a Third Party Facilitator License must comply with all statutory and administrative requirements typical of a retail liquor license applicant with the Michigan Liquor Control Commission. This includes submission of inspection, application and license fees, as well as successful completion of a background check. A Third Party Facilitator applicant is also subject to investigation by the Enforcement Division, including review of the applicant’s background and financial information. Since the Third Party Facilitator License has been classified as part of Michigan’s retail liquor license tier, an existing licensee who holds a manufacturer or wholesaler license cannot have a direct or indirect interest in a Third Party Facilitator License. Once approved, the Third Party Facilitator must continue to pay their annual renewal license fee, maintain accurate books and records, and submit quarterly reports to the Michigan Liquor Control Commission - detailing the name and address of the originator and recipient of the beer, wine or liquor, date of delivery and weight of delivery. The retail licensee or the consumer must pay the fees associated with the delivery, and the Third Party Facilitator must offer services for all brands available at the retail location. A bonus for retail licensees
partnering with Third Party Facilitators, the Michigan Liquor Control Code does not hold the retail licensee liable for a violation made by the Third Party Facilitator - a departure from the liquor laws in other states. Of course, you still must be at least 21 years old to receive the delivery and the retailer or Third Party Facilitator must utilize an identification verification provider or procedures to ensure they remain compliant with the Michigan Liquor Control Code.

So, as you sink into your couch, basking in the warmth of your fireplace and watching the snow fall outside, rest assured that delivery of your favorite craft beer, handcrafted wine or distilled liquor from northern Michigan’s finest is now just a swipe away.

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Cortney Danbrook advises business clients on liquor licensing and regulatory compliance and provides specialized counsel to individuals, families and businesses in the areas of estate planning and administration. She can be reached at (231) 714-0163 or cdanbrook@darlawyers.com.