New Marketing Law Won’t Be Enforced

A new Maine law restricting marketing to minors is so problematic that Attorney General Janet Mills will not enforce the measure, her office said Friday.

“The Attorney General’s position is that she’s not enforcing the law,” Maine Deputy Attorney General Paul Stern said Friday.

Stern added that the authorities take the position that the measure could violate teens’ free speech rights — an argument raised last week by groups who mounted a court challenge to the statute. “We share some of the plaintiffs’ concerns about the law,” Stern said.

via MediaPost.

Bangor Bookseller’s Suit Against Amazon.com to Continue

Mainebiz:

A federal judge is allowing a Bangor publisher and bookseller to proceed with its antitrust lawsuit against Amazon.

In a court order filed Wednesday, Chief U.S. District Court Judge John Woodcock Jr. denied Amazon’s motion to dismiss the lawsuit filed against it by BookLocker, a Bangor-based print-on-demand publisher and bookseller. In May 2008, BookLocker filed the complaint against Amazon, alleging the online retailer is violating a federal antitrust law by forcing print-on-demand publishers to use its BookSurge subsidiary to print books if they want to sell them directly on Amazon. BookLocker alleges that using BookSurge would force it to take a loss on almost every book sold, according to the court documents.

Do You Have Bad Tenants?

A landlord always wants to find the perfect tenant: one who pays on time every month, keeps the unit clean, does not cause trouble with the neighbors. Unfortunately, those people are hard to find. Too often people will present themselves that way when they are looking to rent an apartment, but once they move in they don’t seem to care about anything. And a landlord who needs to get a tenant out needs to follow the law, or risk even more trouble.

A smart landlord will have a good lease that can be used to limit the damage of a bad tenant. The lease should be clear in what the rules are and what behavior is not acceptable. The restrictions need to be reasonable, and the lease needs to be clear as to the consequences for breaking the rules. Apart from the rent obligation, tenants can be required to keep the unit clean and in good repair. While a security deposit will help if a tenant has caused some damage, if you have a tenant that is causing considerable damage, you will want to get them out. As to cleanliness, it is one thing if there are just clothes everywhere, but another if there is excessive food waste which can bring insects and rodents. Other common issues are tenants who are noisy late into the night, smoke indoors or harass other tenants.

If attempts to resolve the problems with the tenant fail, you can begin the eviction process. It is crucial that you follow the procedure set up in the law, otherwise you will end up wasting time. A crucial point here is that if the tenant is still under the terms of the lease, and not a hold-over / “tenant at will,” then the terms of the lease control. If the original lease expired, and you did not have the tenant sign a new lease, then the state’s regulations control the process.

The first step is to serve the tenant with notice that you are terminating the lease, which is called a “notice to quit”. This goes back to having a good lease – as the lease will dictate how many days, and how you need to give the tenant notice before they should be out. If you are in a tenant at will situation, then the State’s regulations dictate how and when a notice to quit needs to be served.* If the tenant has not vacated the unit by the time you have provided in the notice, then you need to begin a legal proceeding known as a complaint for forcible entry and detainer.

The District Court in your jurisdiction is where you will need to begin the forcible entry and detainer proceeding. The Courts have set days available for the hearings, and you need to serve the tenant the required amount of time before the hearing.* At the hearing, if the tenant does show up, the Court will likely have you attempt mediation with the tenant and a Court sponsored mediator. You should make a good faith effort to come to an agreement about when the tenant will move out, or if the problem you are having with the tenant can be resolved. If an agreement cannot be reached, then you will go back and wait to present your case before the judge.

At the hearing you should be prepared with all of your records and paperwork to make your claim. The tenant can make their arguments as to why they should not be evicted. The judge will decide the outcome, but may try to get you and the tenant to agree on something. At that point the judge will grant the eviction or not.

If the eviction is granted, or if the tenant fails to show resulting in a default, then a writ for possession will be issued. It takes a few days before the actual writ is issued,* and then it needs to be served on the tenant. Once the writ has been served, and the time expires for the tenant to be out (currently 48 hours), then they are considered trespassers.

Overall this can be a long process, and mistakes will make it longer. It is best to work with an attorney who can help you guide through it, and advice you based on the specifics of your situation. My office is happy to assist you with preparing the right lease, or eviction process.

* As these regulations and timeframes may change over time, I am purposely not providing the details here.

Concerns About Use of Eminent Domain Sought

The co-chairs of the Legislature’s Judiciary Committee have asked the MSBA to facilitate the collection of information about the exercise, or threatened exercise, of eminent domain power by both public bodies and those entities authorized to condemn property for specific uses. The Judiciary Committee has heard numerous complaints about the level of compensation when a government or a utility displaces a business. In addition, individual landowners have testified about their unhappiness with the process and their treatment when utilities prepare to exercise their statutory eminent domain power.

The MSBA has been asked to convene workshops to help identify specific problems and concerns with eminent domain laws and practices that landowners and their legal counsel have faced in the past and see looming in the future. If you would like to participate in such an effort, or have information you would like to share with the Judiciary Committee, please contact Julie Rowe (jrowe@mainebar.org).

Book about Sail Inn taking

The story of the taking of the Sail Inn by eminent domain has been published. You can buy the book on Amazon.com.

The Sail Inn Restaurant, owned and operated by the Dyer family since 1948, was taken by the state of Maine under eminent domain laws in November 2003.

The Dyer family’s story is now out in a book called “The Taking,” by Dick Dyer, of Winthrop.

The state claimed the restaurant and the five acres on which it stood. A settlement regarding how much the property was worth or if the property had rightfully been taken had not yet been reached. When it was eventually settled, Maine Department of Transportation legally could not comment on details of the case, which includes confirming or denying events, said Ray Quimby, chief of right of way operations at MaineDOT.

via Morning Sentinel.

Smoking Ban Goes Statewide

“Maine smokers lost one of their last public refuges today when Gov. John Baldacci signed into law a bill prohibiting smoking in outdoor eating areas. The bill is modeled after last year’s Portland ordinance that bans smoking on cafe patios, decks and other outdoor dining areas.”

via MPBN.

Tax Reform Bill Signed

“Gov. John Baldacci has signed a measure that will make big changes to the state’s tax code. The bill, reworked at the Governor’s insistence, will lower the top income tax rate, and expand the state’s five percent sales tax to make up the difference.  …Under Baldacci’s revision, the top income tax rate would drop to 6.85 percent for those who make more than $250,000 a year, and 6.5 percent for everyone else. The Governor’s version would also eliminate sales taxes proposed for some outdoor recreational activities and keep the real estate transfer tax at the current rate.”

via MPBN.

Hannaford Get Big Break

The federal court has rejected most of the claims against Hannaford supermarket relating to massive data breach.

A federal judge on Tuesday dismissed nearly all of the civil claims filed against Hannaford Bros. for the supermarket giant’s alleged failure to protect and notify consumers during an electronic data breach in late 2007 and early 2008.

Judge D. Brock Hornby ruled that the only consumers who will be allowed to proceed with the lawsuit are those who were not reimbursed by their banks for the fraudulent charges on their accounts.

Consumers who were simply inconvenienced or claimed to have suffered distress because of the data breach have no legitimate claims in this case, Hornby said in a 39-page ruling filed Tuesday afternoon at U.S. District Court. Essentially, the ruling on Hannaford’s motion to dismiss makes it unlikely that any class-action lawsuit will move forward.

– via Portland Press Herald.