“Smoking” is defined as “the burning of a lighted cigar, cigarette, piper or any matter or substance that contains a tobacco product.” There is a ban on smoking in “public places.” A “public place” includes areas owned and operated by the government; areas not owned or operated by the government, but used by the general public for certain specified purposes; and (unless otherwise exempt) a place of employment. The third one covers almost all of the businesses in the State. A “place of employment” is an enclosed indoor area that contains a work area for one or more people.

Business owners are expected to take steps to reasonably prevent customers, employees, or other people from smoking on their premises. Business owners are expected to do ALL of the following:

1. Clearly and conspicuously post no smoking signs (or the international no smoking symbol) at the entryway and in all buildings where smoking is prohibited.
2. Remove all ashtrays or other smoking paraphernalia from any place smoking is prohibited under the Act.
3. Inform individuals smoking in violation of the Act that they are in violation of state law and are subject to penalties.
4. Refuse to serve an individual smoking in violation of the Act.
5. Ask an individual smoking in violation of the Act to refrain from smoking, and ask them to leave if they refuse to stop.

If owners do all of the preceding things, they have an affirmative defense against any prosecution against them for a violation of the Act. This means that the business owner can be exempt from penalties under the Act, but only if all of the preceding conditions are met.

The Act includes a few exceptions. Casinos in existence before the Act can allow smoking in gaming areas only. Casinos built later cannot allow smoking. (The term casino in the bill does not include a casino operated under the Indian Gaming Regulatory Act. Thus, the smoking ban does not apply to these casinos.) An existing separate specialty tobacco shop may allow smoking. Cigar bars may also allow smoking (but only the smoking of cigars, not other tobacco products).  The ban also does not apply to motor vehicles.

Overall, business owners should be proactive in preventing smoking in their place of business by following the five requirements described above.

Download a copy of the Bill in PDF format by clicking here.

This article was written by Mark S. Demorest, Managing Member of Demorest Law Firm.

A recent Michigan Court of Appeals ruling in the case Reicher v SET Enters, Inc (click here to view) decided that a settlement agreement between the representative and principal after the representative was terminated and had filed a lawsuit against the principal can negate the non-waiver rule.  In other words, when Reicher decided to settle his claims against the principal he signed away his rights to protection under the SCRA.  When the principal breached the settlement agreement, the statutory penalties under the SCRA did not apply.  Reicher was limited to the damages for breach of contract.

The non-waiver provision will still apply to a contract or agreement establishing or modifying the business relationship between the principal and the sales representative, but does not apply to post-termination agreements.

These laws do not apply to a prepaid card issue by a financial institution that may be used at many different types of retailers (such as a prepaid Visa card).

Furthermore, companies cannot refuse partial payment of a good or service with a gift card. In other words, even if the total sale is more than the balance on the card, a business must accept the gift card as partial payment for the good or service. Companies also cannot refuse gift cards during sales or closeouts.
Lastly, the terms and conditions of a gift card cannot be altered after the gift card has been purchased. Terms must be disclosed on the gift card or certificate, on the envelope it comes in, or an 800 number must be provided to obtain the terms and conditions.

To add to all the State changes, President Obama recently signed into law the Credit Card Accountability Responsibility and Disclosure Act. Title IV of the Act—relating to gift certificates, gift cards, and prepaid cards—becomes effective August 22, 2010. These regulations will not have as great an impact in Michigan as they may in other places around the country because Michigan has already enacted rules governing the use of gift cards and gift certificates. The new Federal law provides:

•    Gift cards may not expire less than 5 years after the date of purchase (already in effect in Michigan).
•    Dormancy fees, inactivity fees, and service fees are prohibited unless (1) there has been no activity with respect to a certificate or card for the preceding 12 months, (2) disclosure requirements are met, (3) not more than one fee per month is charged, and (4) any additional requirements imposed by Federal Reserve Board regulations are met. (Companies in Michigan may still have to follow Michigan laws if stricter).

These State and Federal laws must be strictly followed to avoid becoming liable for damages and penalties.

On May 19, 2009, the Michigan Legislature passed a package of three bills designed to give homeowners facing foreclosure a ninety-day window to meet with their lender and modify the terms of their mortgage.  With the state facing one of the highest foreclosure rates in the nation, lawmakers hope these new laws will ease the strain on distressed homeowners and allow them to stay in their homes.  These laws may not be permanent.  Some of the provisions will be in effect for a period of only two years unless the “sunset” provision is amended.  Governor Granholm signed the bills on May 21, 2009, and the laws will take effect on July 5, 2009.

Under the legislation, a lender may not foreclose on a property claimed as a principal residence unless the lender first provides written notice to the borrower stating the reasons that the mortgage loan is in default and the amount due.  The written notice must also designate an agent of the mortgage holder whom the borrower can contact to attempt to rework the terms of the loan, and a list of housing counselors prepared by the Michigan State Housing Development Authority whom the borrower can request to attend a meeting with the agent of the mortgage holder to assist in modifying the loan.

The law further provides that foreclosure proceedings may not be commenced until ninety days after the initial notice was mailed if the borrower chooses to meet with the mortgage holder.  If the borrower and the mortgage holder reach an agreement to modify the terms of the loan within the ninety-day period, the mortgage cannot be foreclosed.  Potential modifications include an interest rate reduction, extension of the amortization period, deferral of up to 20% of the unpaid balance of the loan, and reduction or elimination of late fees.

If the homeowner meets minimum financial standards specified in the law, but the mortgage holder refuses to modify the terms of the loan, the lender is required to go before a judge to attempt to complete the foreclosure.  Additionally, if notice is not mailed to the borrower as required, the borrower may bring an action in the circuit court to enjoin the foreclosure.

The new restrictions apply only to property claimed as a principal residence by the property owner.  They do not apply to second homes, rental properties or other commercial properties.

For the full text of the new laws, click here (PDF format).

Michigan Legislature Website – House Bill 4453

Michigan Legislature Website – House Bill 4454

Michigan Legislature Website – House Bill 4455