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GJJM Enterprises, LLC v. City of Atlantic City

United States District Court, D. New Jersey

November 19, 2018

GJJM ENTERPRISES, LLC, d/b/a STILETTO, Plaintiff,
v.
CITY OF ATLANTIC CITY, CITY OF ATLANTIC CITY POLICE DEPARTMENT, HENRY WHITE, Chief, Atlantic City Police Department, [1] CHRISTOPHER PORRINO, New Jersey Attorney General, NEW JERSEY DIVISION OF ALCOHOLIC BEVERAGE CONTROL, DAVID P. RIBLE, Director of New Jersey Division of Alcoholic Beverage Control, Defendants.

          MEMORANDUM OPINION & ORDER

          JOSEPH H. RODRIGUEZ U.S.D.J.

         In this 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.

         Cross-motions 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.

         Background

         GJJM 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.

         New Jersey Law

         Section 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.

         Under 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. ...


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