GJJM Enters., LLC v. City of Atl. City, Civil Action No. 17–2492

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
Citation293 F.Supp.3d 509
Docket NumberCivil Action No. 17–2492
Parties 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, 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.
Decision Date21 December 2017

293 F.Supp.3d 509

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, 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.

Civil Action No. 17–2492

United States District Court, D. New Jersey.

Signed December 21, 2017


293 F.Supp.3d 512

Stephen D. Holtzman, Holtzman & McClain, PC, Linwood, NJ, for Plaintiff.

Melanie Rose Walter, State of New Jersey Office of the Attorney General, Valentina Marie Dipippo, State of New Jersey Department of Law & Public Safety, Trenton, NJ, for Defendants.

OPINION

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

In this lawsuit, Plaintiff GJJM Enterprises, LLC d/b/a Stiletto ("GJJM") challenges the constitutionality of New Jersey's ban on "BYOB" advertising and has sought declaratory and injunctive relief in asking this Court to declare N.J. Stat. Ann. § 2C:33–27(a)(2) violative of its First Amendment rights and to enjoin the government from enforcing the ban.

This matter is before the Court on (1) a motion to dismiss the Complaint filed by Defendants City of Atlantic City, City of Atlantic City Police Department, and Henry White, Chief, Atlantic City Police Department ("Atlantic City Defendants") [21]; (2) a motion for preliminary injunction filed by GJJM, [5] in Civil Action No. 17–6879, which has been consolidated under the above-captioned docket number; and (3) a cross-motion to dismiss the Complaint by Defendants New Jersey Division of Alcoholic Beverage Control, Christopher Porrino, and David P. Rible ("State Defendants"), [5] in Civil Action No. 17–6879.

The Court heard oral argument on the motions on October 30, 2017; no testimony was offered beyond affidavits and attached documents. After careful consideration, GJJM's motion for a preliminary injunction will be granted for the reasons and in the form explained below. The following constitutes the Court's findings of fact and conclusions of law upon GJJM's motion, pursuant to Federal Rule of Civil Procedure 52(a).

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. (Affidavit of Phillip Griffo, ¶ 3.) 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.

293 F.Supp.3d 513

Presently before the Court is a motion for a preliminary injunction enjoining the State Defendants1 from taking any actions to enforce the statutory provisions that prohibit establishments from advertising that patrons may bring their own beverages to consume on the premises. Also under consideration are cross-motions by the Defendants to dismiss the Complaint.

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.

Thus, 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 beer or wine on the premises. Individuals who advertise that customers may BYOB to their restaurants face prosecution as disorderly persons. 2C:33–27(c). In addition, courts may also prohibit individuals who violate the advertising ban from permitting the consumption of BYOB beverages at their restaurants. Id.

Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of a claim based on "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A complaint should be dismissed pursuant to Rule 12(b)(6) if the alleged facts, taken as true, fail to state a claim. Fed. R. Civ. P. 12(b)(6). When deciding a motion to dismiss pursuant to Rule 12(b)(6), ordinarily only the allegations in the complaint, matters of public record, orders, and exhibits attached to the complaint, are taken into consideration.2

293 F.Supp.3d 514

See Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990). The question before the Court is not whether the plaintiff ultimately will prevail. Watson v. Abington Twp., 478 F.3d 144, 150 (3d Cir. 2007). Instead, the Court simply asks whether the plaintiff has articulated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

"A claim has facial plausibility3 when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). "Where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

The Court need not accept " ‘unsupported conclusions and unwarranted inferences,’ " Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citation omitted), however, and "[l]egal conclusions made in the guise of factual allegations ... are given no presumption of truthfulness." Wyeth v. Ranbaxy Labs., Ltd., 448 F.Supp.2d 607, 609 (D.N.J. 2006) (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ); see also Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005) ("[A] court need not credit either ‘bald assertions’ or ‘legal conclusions’ in a complaint when deciding a motion to dismiss.") ). Accord Iqbal, 556 U.S. at 678–80, 129 S.Ct. 1937 (finding that pleadings that are no more than conclusions are not entitled to the assumption of truth). Further, although "detailed factual allegations" are not necessary, "a plaintiff's obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal citations omitted). See also Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.").

Thus, a motion to dismiss should be granted unless the plaintiff's factual allegations are "enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true (even if doubtful in fact)." Twombly, 550 U.S. at 556, 127 S.Ct. 1955 (internal citations omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘shown’-‘that the pleader is entitled to relief.’ " Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (quoting Fed. R. Civ. P. 8(a)(2) ).

Nature of the Claim

GJJM's Constitutional claim is governed by Title 42 U.S.C. § 1983, which provides a civil remedy against any person who,...

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