United States District Court, D. New Jersey
MEMORANDUM OPINION & ORDER
H. RODRIGUEZ U.S.D.J.
motion, Plaintiff GJJM Enterprises, LLC d/b/a Stiletto
(“GJJM”) challenges the constitutionality of New
Jersey's ban on “BYOB” advertising and seeks
declaratory and injunctive relief claiming that N.J. Stat.
Ann. § 2C:33-27(a)(2) violates its First Amendment
rights and that the government should be enjoined from
enforcing the ban.
for summary judgment are now before the Court. Oral argument
on the motions was held September 19, 2018, and the record of
that proceeding is incorporated here. For the reasons stated
during oral argument, as well as those articulated below, the
Court will grant Plaintiff's motion for summary judgment,
as the Court finds the State's BYOB advertising ban
unconstitutional. Accordingly, the State Defendants'
cross-motion for summary judgment will be denied. The parties
are directed to provide the Court with a proposed permanent
injunction to reflect these proceedings.
operates a nightlife destination called Stiletto (“the
Club”) adjacent to the Atlantic City boardwalk. The
Club features non-alcoholic beverages and live entertainment
and frequently hosts tourists, convention groups, and
bachelor parties. As a service to its customers, GJJM permits
its clientele to bring their own beer and wine
(“BYOB”) to consume at the Club; it does not
allow customers consume liquor or mixed drinks in the Club.
GJJM contends that the fear of prosecution under New
Jersey's ban on BYOB advertising has prevented it from
notifying its clients-either through radio, print,
television, and online ads or by exterior or interior
signage-that they are permitted to bring their own beer or
wine to the Club.
2C:33-27 of the New Jersey Statutes governs the consumption
of alcohol at restaurants that do not have a license to sell
alcoholic beverages. It provides, in pertinent part:
a. No. person who owns or operates a restaurant, dining room
or other public place where food or liquid refreshments are
sold or served to the general public, and for which premises
a license or permit authorizing the sale of alcoholic
beverages for on-premises consumption has not been issued:
(1) Shall allow the consumption of alcoholic beverages, other
than wine or a malt alcoholic beverage, in a portion of the
premises which is open to the public; or (2) Shall charge any
admission fee or cover, corkage or service charge or
advertise inside or outside of such premises that patrons may
bring and consume their own wine or malt alcoholic beverages
in a portion of the premises which is open to the public.
(3) Shall allow the consumption of wine or malt alcoholic
beverages at times or by persons to whom the service or
consumption or alcoholic beverages on licensed premises is
prohibited by State or municipal law or regulation.
* * *
c. A person who violates any provision of this act is a
disorderly person, and the court, in addition to the sentence
imposed for the disorderly person violation, may by its
judgment bar the owner or operator from allowing consumption
of wine or malt alcoholic beverages in his premises as
authorized by this act.
N.J. Stat. Ann. § 2C:33-27.
the statute, patrons may bring their own beer and wine to the
restaurant, but may not bring outside liquor. 2C:33-27(a)(1).
The restaurant may not, however, advertise-either inside or
outside the establishment-that patrons are permitted to bring
their own alcoholic beverages. 2C:33-27 (a)(2). As a result,
restaurants are prohibited from notifying customers that
their establishments are BYOB, even though it is lawful for
patrons to bring and consume their own beer or wine on the
premises. Individuals who advertise that customers may BYOB
to their restaurants face prosecution as disorderly persons.