06-14-11 CLUB 35, L.L.C. VS. BOROUGH OF SAYREVILLE A-5932-09T3
We consider a local ordinance that is a counterpart to N.J.S.A. 2C:33-27, a provision of the Code of Criminal Justice. The Code offense and the ordinance regulate a practice commonly known as BYOB — bringing one's own beer or wine to drink in premises that serves other drinks or food but does not have a license or permit authorizing sale of alcohol for on-premises consumption. Applying N.J.S.A. 2C:1-5d, we conclude that the ordinance's regulations of BYOB are preempted.
Because the Code offense preserves a municipality's right to prohibit BYOB, we also address the scope of that authority. We hold that the reserved right permits a municipality to prohibit BYOB in all but a clearly, objectively and rationally defined class of unlicensed establishments but that regulation of BYOB where a municipality permits it is governed exclusively by N.J.S.A. 2C:33-27.
