New Jersey became home to America’s first commercial distillery when, in 1780, an immigrant from Scotland established an Applejack production facility in what is now Colts Neck. Since that time, New Jersey has become the birthplace to some of the most complex liquor license laws in the Country. For those familiar with the application process and cost of a license, there can be no dispute that acquiring and maintaining a liquor license through the New Jersey Division of Alcoholic Beverage Control (the ABC) and it’s many coordinate local licensing authorities is both an expensive and intensive pursuit subjecting owners and operators to routine inspection of books, records and on premises activities. There is, however, an undeniable economic incentive to obtaining the privilege to sell and serve the panoply of popular intoxicating beverages that diners and revelers alike willingly peel out the plastic to purchase in mass quantities.
The relative scarcity and expense of consumption licenses has led many restaurants to instead turn to New Jersey’s BYOB (Bring Your Own Bottle) law, which permits patrons to bring their own alcoholic beverages to consume on unlicensed premises—those restaurants that do not have a liquor license. Importantly, however, our BYOB law, codified at N.J.S.A. 2C:33-27, is far more limiting than many restaurants and patrons may realize.
Primarily, New Jersey’s BYOB law permits only wine and malt alcoholic beverages (the most common malt beverage being beer) to be consumed, thus, patrons may not bring and establishments should not allow their patrons to consume distilled beverages. Thus, vodka, gin, rum, whiskey, and the many other beverages that are produced through distillation are simply not permitted in any form regardless of the particular proof of the spirit.
BYOB Is Not Universally Allowed In New Jersey
Few are familiar with the fact that BYOB is not universally allowed. Restaurants may not permit BYOB in their establishments if the local government of the municipality in which the restaurant is located has forbidden the practice. See Club 35, L.L.C. v. Borough of Sayreville, 420 N.J. Super. 231 (App. Div. 2011). Even where the practice is permitted under local law, it is ultimately up to each restaurant to determine whether it will or will not permit BYOB on its premises.
Advertising BYOB is Now Allowed in New Jersey
Before November 18, 2018, a restaurant was prohibited from advertising that it was a BYOB. However, the United States District Court for the District of New Jersey recently held that banning BYOB advertising is unconstitutional because the state may regulate alcohol but not the speech relating to alcohol. See GJJM Enterprises, LLC v. City of Atlantic, 352 F. Supp. 3d 402, 409 (D.N.J. 2018). Advertising a BYOB restaurant is considered commercial speech and is not conduct that allows the state to prevent it. Id. Therefore, New Jersey restaurants may advertise that they are BYOB, provided the municipality in which the restaurant is located permits BYOB. In addition, restaurants are prohibited from charging any fee, cover, service or corkage charge for customers who bring their own wine or malt beverage. Consumption is limited to specific hours and, like licensed restaurants, BYOB restaurants should not allow their patrons to overindulge on their premises, even though the restaurant is not actually providing nor serving alcoholic beverages.
BYOB Regulation is Enforced Locally, not by the ABC
The New Jersey ABC does not have legal jurisdiction over unlicensed establishments. New Jersey’s BYOB law places the burden on the establishment to comply with law and leaves enforcement to local law enforcement. Thus, patrons who seek to unlawfully consume distilled beverages, or those who continue consuming after becoming visibly intoxicated, are placing the operator of the restaurant in legal jeopardy. While patrons who violate the law could be subject to penalties that range up to six months in jail, a municipality through its local police powers could charge the establishment with per incident violations, which could become progressively more punitive. Ultimately, for those establishments that routinely permit the abuse of the BYOB law, it is foreseeable that they could suffer the loss of the advantage offered by the BYOB law. Further, a history of violating the BYOB law would likely be considered and employed as a reason to reject a future bid for licensure by the ABC.
If you have any questions about BYOB law in New Jersey, contact John E. Hogan at 732.855.6470.
The postings on this blog were created for general informational purposes only and do not constitute legal advice or a solicitation to provide legal services. Although we attempt to ensure that the postings are complete, accurate, and current as of teh date of publication, we assume no responsibility for their completeness, accuracy, or timeliness. The information in this blog is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel.
This blog may contain links to independent third party websites and services, including social media. We provide these links for your convenience, and you access them at your own risk. We have no control over and do not monitor the content or policies (including privacy policies) of these third-party websites and have no responsibility for, and no liability with respect to, their content, accuracy, or reliability. Unless expressly stated, we do not endorse any of the linked websites or any product, service, or publication referenced herein or therein. We will remove a link to any site from this blog upon request of the linked entity.
We grant permission to readers to link to this blog so long as this blog is not misrepresented. This site is not sponsored or associated with any other site unless so identified.
If you wish for Wilentz, Goldman & Spitzer, P.A., to consider representing you, please obtain contact information from the Contact Us area of this blog or go to the firm’s website at www.wilentz.com. One of our lawyers will be happy to discuss the possibility of representation with you. However, the authors of Wilentz blogs are licensed only in New Jersey and/or New York and do not wish to represent anyone who viewed this site in a state where the site fails to comply with all laws and ethical rules of that state.