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Legal Q & A



Matthew Weng
Matthew Weng
League Staff Attorney

Regulating BYOB Restaurants and Residency Requirements for Elected Officials

Q We are looking to enact a bring your own bottle (BYOB) ordinance in town to allow restaurant patrons to drink beer and wine that they bring themselves. We’d like to be able to exercise some control over BYOB in town, such as regulating hours, etc. What should we know about the process?

A BYOB is governed by state statute. N.J.S.A. 2C:33-27 sets out the statewide rules restaurants that do not possess a liquor license must follow to permit their patrons to consume beer or wine they brought themselves.

First, it should be noted that since this is a state statute which permits BYOB, no municipal ordinance is necessary. An ordinance is only needed if a municipality wishes to prohibit BYOB altogether. Otherwise, BYOB is the default, unless the restaurant owner or management prohibits it. A municipality may also “prohibit BYOB in ‘commercial’ unlicensed premises other than exempt restaurants.”

Facilities that choose to permit BYOB can only allow patrons to bring wine or a malt beverage, cannot charge a cover or a service fee related to the BYOB, and cannot advertise that they offer BYOB. They must follow all applicable liquor laws. Violating any of these provisions is a disorderly persons offense and can result in the restaurant losing their ability to offer BYOB.

Because BYOB is subject to state statute, the Appellate Division has found that any attempt to further regulate BYOB on the municipal level is preempted. The court stated:

“[I]n those places where a municipality opts to permit BYOB, it may not regulate the practice. The Legislature has regulated BYOB as it deems appropriate in N.J.S.A. 2C:33–27a(1)–(3),241 and N.J.S.A. 2C:33–27b reserves nothing more than a municipal right to prohibit BYOB. Under Meyer, Crawley and N.J.S.A. 2C:1–5d, because N.J.S.A. 2C:33–27b does not reserve a municipality's right to regulate BYOB, any ordinance that does so is preempted because that right is excluded from the Legislature's grant of municipal authority.”
 

Q I am interested in how municipal residency requirements apply to situations like a natural disaster. For example, Hurricane Sandy destroyed many homes in several shore towns. What would happen if a local elected official is displaced by a storm?

A Here are the statutes in question: N.J.S.A. 40A:9-1.11d. “Resident” means a person having, within the territorial limits of the local unit, a place of abode, which has not been adopted for any mere special or temporary purpose, but is his ordinary and permanent domicile.

N.J.S.A. 40A:9-1.12. Local elective office; residency requirement; vacancy upon cessation of residency.

No person shall be a candidate for, nor hold, any local elective office unless he is a resident of the local unit to which the office pertains. If any person nominated for, or holding, any local elective office shall cease to be a resident of the local unit to which the office pertains, the nomination or office, as the case may be, shall be vacant, and shall be filled in the manner prescribed by law.

Only one case is close to being on point. In Borden v. Lafferty, a Law Division case (meaning it has limited value as precedent) from 1989, the court talked about things like intent and substantial residential roots:

Physically, the Laffertys were in Pennington, but the parts of them that count, their hearts and their heads, were in Bordentown. It is there that they became domiciled on May 2, 1988...The Legislature cannot have intended so narrow a reading of the residency law that it denies the candidacies of persons having bona fide and substantial residential roots in a community.”

Again, because this is a Law Division case it does not have statewide precedent. There is, as far as I know, no hard and fast exception to this law for elected officials displaced by emergencies.

 

This column is for informational purposes only, and is not intended as legal advice.

 

First published in New Jersey Municipalities, Volume 90, Number 4, April 2013

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