Just in time for the holiday season, a federal judge in NJ has struck down state government regulation of commercial speech for restaurants that do not have a liquor license. On November 20, 2018, a NJ ban on advertising of policies allowing patrons to bring their own beer and wine (“BYOB”) to restaurants was ruled unconstitutional because it places a content-based restriction on commercial speech.
In a case brought by a “nightlife destination” club in Atlantic City, Stiletto, the court ruled that the ban “places a content-based restriction on speech that fails strict scrutiny because it is not supported by a compelling government interest nor is it the least restrictive means of achieving the government’s stated purpose.” In that case, entitled GJJM Enterprises v. City of Atlantic City, the judge found that the state’s Division of Alcoholic Beverage Control (“ABC”) “presented no compelling government interest for banning BYOB advertising, while permitting liquor stores and restaurants with liquor licenses to advertise on-site alcohol sales.”
Previously, NJ law forbade restaurants and other establishments selling food or beverages without a liquor license from advertising that customers may “bring and consume their own wine or malt alcoholic beverages.” Moreover, the penalty for violation was a disorderly persons offense as well as the threat of a ban on further BYOB authorization for the facility.
The state’s argument that it has a strong interest in protecting the health, safety and welfare of the people of the state through the promotion of temperance was not persuasive, according to the judge. The state has not yet indicated if it will appeal the judge’s ruling to the Third Circuit Court of Appeals.
The decision is at https://images.law.com/contrib/content/uploads/documents/399/18692/byob.pdf
Happy Holidays, and please drink responsibly. If you have any questions about the impact of this ruling or how ABC laws and regulations impact your business, please contact Angelo Bolcato, Esq. at Laddey, Clark & Ryan, LLP.