After our last post regarding the ORR Recommendations, the summer remained relatively quiet. A few items were brought to our attention this week, so we decided that a brief update was in order.
Regarding the Licensing Process
We have been pleased to see that authorization for investigation appears to be occurring more quickly. During the early part of the year, we had several applications that were not authorized for investigation for over a month after receipt by MLCC. By contrast, two of our recent applications were authorized within 12-15 days of receipt by MLCC. We believe this may be a sign that Licensing is “getting their groove back” following the many recent changes.
By contrast, we are somewhat concerned about the length of time that docket preparation is currently taking. We have had several applications languish in Lansing after the investigation was complete. During a recent phone call, we were informed that it may be 4-6 weeks from the time of receipt until the application is on the docket for a Commission decision. Our hope is that this process, like the initial authorization, will soon speed back up.
For now, we believe that both of these points should serve as a reminder regarding the timeframe for approval/denial of an application. We are still advising clients that they should plan for a process that takes up to five or six months (and hope for much less). While six months is certainly on the long side, it is better to be prepared in the event that the current slowdown is not remedied (or even exacerbated).
In what is certainly a step in the right direction, MLCC is now providing next-day approvals for temporary outdoor permits. In order for an application for temporary outdoor service to be placed on a consent agenda for next-day consideration, the application must meet certain criteria in order to qualify:
- It must be a completed application,
- The $70 permit fee must be included.
- There must be a completed diagram with dimensions indicating the establishment’s ingress/egress.
- The proposed area must be smaller than 20,000 square feet.
- The proposed area must not be located adjacent to a body of water or within a sporting venue.
- The proposed area must not be more than 25 feet away from the establishment; and
- The proposed area must not be across an easement or thoroughfare.
Regarding the ORR Recommendations
We are still waiting for further action on the ORR Recommendations. When and if such action occurs, we will certainly post information on here.
Regarding “doing things the way we always have.”
On several occasions, we have noted that licensees and practitioners should not expect things to work as they always have when it comes to MLCC affairs. In many areas, the current Commission is taking a dramatically different approach to interpreting the letter of the law and the rules. This point was recently hit home for us in a situation involving gas station inventory (something we like to believe we are well versed in). A form of inventory that has historically been used to satisfy the inventory requirement without problem was deemed to be “non-qualifying” (no – it was not stamps or tobacco rolling papers). Our initial contacts to both enforcement and administration yielded a resounding consensus – No one but the Comm’n can decide how the law is to be applied, and the Comm’n will not decide until the issue is before them.
For obvious reasons, the approach detailed above can be very frustrating; however, it is not unmanageable. Until further bright-line rules are developed and passed down, we recommend sticking as closely to the letter of the law as possible and never assuming that a prior practice (especially in a gray area) will remain acceptable today. While arguing with the Commission/Enforcement may be the only viable option in certain situations, in the majority of situations, cooperation will be the fastest (and cheapest) method of moving beyond the issue. In our gas station situation, rather than waste everyone’s time and our client’s money, we cooperated, installed a few thousand more dollars of inventory, and moved on.
Hopefully, as time passes, further changes at MLCC will bring about an easier to follow set of guidelines and a more expedient process. Until then, just remember – we are all in this together.
Regarding the MLBA Fall Convention
If you are an on-premise licensee, we always recommend membership in the MLBA. The discounts that come with membership can pay for your membership cost quite quickly. As a reminder to current members, the MLBA Fall convention is quickly approaching. You can sign up today here. (And no, we were not paid for the endorsement – both Jim Stariha & Michael Brower are active in and pleased with the MLBA).
*This information and thoughts herein are provided by the Liquor Lawyers at Stariha & Brower, PLC. As always, we remind readers that the materials on this site are provided purely for informational purposes and are not legal advice. These materials are intended, but not promised or guaranteed, to be correct, complete, and current. This blog is not intended to be a source of legal advice. Therefore, the reader should not consider this information an invitation for an attorney-client relationship. Readers should always seek the advice of competent counsel.