Validity of BYOB ordinance unclear

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OCEAN CITY — In light of an appellate court ruling in a Sayreville, NJ case that municipalities may permit BYOB or not, but they cannot regulate it, petitioners pulled a BYOB ordinance in August 2011 because it restricted the amount of alcohol that could be consumed.

The June 2011 appellate court ruling has broad ramifications for many New Jersey towns permitting BYOB. Could it impact the recently initiated ordinance because this one, too, includes restrictions, such as prohibiting BYOB on the city’s boardwalk? City solicitor Dorothy McCrosson said that she had “no comment” at this time. However, in August 2011 when she advised City Council that the ordinance being presented at that time was problematic because it restricted the amount of alcohol that was permitted to be consumed, she said that there were other “gray areas” in a court ruling that could play out in the recently proposed ordinance.

“If a municipality permits BYOB, it may not enact an ordinance that regulates BYOB,” the June, 2011 appellate court decision said.

State statute, McCrosson said in August, pre-empts local ordinances. While proponents garnered enough signatures to potentially get the initiative on the Nov. 8 general election ballot, the ordinance restricted the amount of alcohol a patron can bring to a qualified restaurant – one 750 ml bottle of wine or a six-pack of beer split between two people – and set other questionable restrictions.

McCrosson said if the ordinance went to the ballot and passed, if it were violated, city officials would have a “hard time enforcing it.”

“It puts the burden on the citizens to raise issues,” she said. Council, she said, would facilitate voters approving an invalid ordinance.

“Clearly, it’s a regulation of the practice known as BYOB,” she said, which the state statute preempts. Other regulations, such as requiring table covers, restricting the hours and using a back door for BYOB on the boardwalk during the summer would be “gray areas.”

McCrosson said at that time the “clear area” was restricting the quantity; prohibiting BYOB on the boardwalk could be considered a gray area subject to challenge.

The borough of Sayreville passed a BYOB ordinance in 2009. When Club 35 – which spells its name Club XXXV on its website – allowed patrons to bring their own beer, council voted unanimously to bar Sayreville establishments without liquor licenses – except restaurants – from allowing customers to bring their own alcohol. Club 35 was not considered to be a restaurant.

Calling the rule discriminatory, Club 35 took it to court. The ordinance was upheld, but on June 13, the lower court’s decision was reversed on appeal. According to the ruling, a municipality can prohibit or permit BYOB, but may not enact an ordinance that regulates it because the state statute preempts local ordinances.

The state statute dictates that business owners may not charge an admission fee or cover, corkage or service charge or advertise inside or out that patrons may bring their own wine or malt alcoholic beverages.

In August, McCrosson said the court found that Sayreville was within its rights to “make rational distinctions relevant to local conditions” in deciding what classes of unlicensed premises would be exempt from the ban on BYOB. However, “where a municipality opts to permit BYOB, it may not regulate the practice.” In a 13-page ruling, judges said state law already regulates the practice. Because Sayreville’s ordinance regulated BYOB, it was invalidated by the court, she said.

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