Foster Swift Agricultural Law Update
June 17, 2014
Tourism and agriculture are Michigan’s second and third largest industries. So it’s only natural that Michigan would be one of the leaders in the national movement towards agritourism. From markets to petting zoos, corn mazes to cider mills, opportunities for Michigan agricultural operations to expand market base and increase revenue abound. It’s important, however, for farmers to understand the rules and regulations that apply, as well as the increased liability that comes with inviting the public onto their premises.
THE RIGHT TO FARM ACT
In recognition of the growing importance of agritourism to Michigan’s economy, the State of Michigan has taken action to make it easier, and less risky, to operate some agritourism businesses through modifications to the Michigan Right to Farm Act.
In 1981, Michigan adopted the Right to Farm Act, a law designed to protect farmers from nuisance lawsuits while maintaining environmental quality and minimizing impacts to surrounding landowners. This law authorized the Michigan Commission of Agriculture and Rural Development to develop Generally Accepted Agricultural Management Practices (GAAMPs), a minimum set of standards required by farmers to receive nuisance suit protection. The implementation of GAAMPs is entirely voluntary, with a primary benefit to the farmer being the protections from nuisance suits provided for in the Right to Farm Act.
In 2010 the Commission approved GAAMPs for Farm Markets. Specifically, the GAAMPs were developed to provide direction as to what constitutes an on-farm market and farm market activities.
While the Right to Farm Act provides some protections for certain agritourism activities, there are many other issues to consider when engaging in this business.
ZONING AND REGULATIONS
Notwithstanding the Right to Farm Act, it is still important to review and understand local zoning and building regulations that may apply as you add a commercial or retail operation to your existing farming activities. Depending on the intended use of your land, you may be required to obtain a permit or variance, and local building codes should also be reviewed.
The last thing a farmer wants to consider when contemplating an agritourism operation is a visitor falling off a hayride or out of an apple tree, being injured by a piece of equipment or machinery, or being bitten by an animal. But these and other liability risks are very real, and steps should be taken to mitigate them.
Generally speaking, as an agritourism operator you owe your visitors a general duty of care to prevent them from being injured by risks that you’re aware of or should be aware of on your land. That means that you should conduct an audit and inspection of your land and operations to identify risks and hazards and fix them. Steps to take to reduce the risk of liability should include:
- Consider physical site hazards including visitor activities and “attractive nuisances” (such as farm equipment, stacks of hay, etc.) that may attract children;
- Post rules and warnings for customers and conduct regular inspections;
- Educate your visitors on how to interact safely with livestock;
- Consider what you are selling or producing and any health or safety regulations or considerations;
- Understand what will be required on-site to safeguard the health and safety of your employees;
- Post and implement employee rules and regulations; and
- Consider using preventative measures like waivers or product warnings if warranted.
No matter how careful you are, accidents may happen. Therefore, farmers who offer agritourism activities should obtain appropriate insurance coverage. In many instances, an existing policy that covers the farm business itself does not extend to liability from other profit-making activities.
SALE OF FOOD AND BEVERAGES
If you operate a farm market, on-farm store or cider mill on your property, you must be aware of and comply with Michigan’s Food Law, and other laws governing food safety. For example, there are no Michigan licensing requirements for farmers selling fresh, whole, uncut fruits and vegetables at a farmers market in Michigan; however, fresh fruits and vegetables must be handled safely and protected from contamination. Another example involves the production and sale of apple cider. The production and sale of cider is subject to many state and federal requirements. How and where the cider is produced and sold affects pasteurization and other requirements. Many other laws, rules and regulations apply depending on what is being sold and where it is being sold. Bottom line – make sure you’re consulting with an attorney if you intend to sell food or beverages on your land. Below are several additional resources to utilize for the sale of food and beverages on your land:
FEDERAL LAWS AND REGULATIONS
By opening up your land to visitors and conducting business, you may be subjecting yourself to federal laws and regulations that you never considered. For example, the Americans with Disability Act may apply and require wheelchair ramps to be installed in order to allow access to buildings. It’s important to be aware of applicable federal laws and regulations as non-compliance can be costly.
While we’ve identified a number of risks to be aware of while operating an agritourism business, our objective is not to discourage anyone from pursuing this worthy endeavor. There are, obviously, many rewards that go along with the risks, such as the potential for increased income and the opportunity to educate and inform the public about farming and agriculture. Risk management strategies can help minimize the risks and maximize the potential benefits. From reviewing applicable rules and regulations, to drafting effective liability waivers, Foster Swift’s Agricultural attorneys can help to identify and provide solutions to many of the legal and business challenges that agritourism businesses face.
Please contact Attorney Liza C. Moore with any questions you may have on managing risk in agritourism at 517.371.8281 or email@example.com.