Alcohol laws of New Jersey

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The location of New Jersey within the United States

The state laws governing the control of alcohol beverages in New Jersey are among of the most complex in the United States of America and contain many peculiarities that are not found in other states. State law provides for 29 distinct liquor licenses granted to manufacturers (e.g. wineries, breweries), wholesalers, retailers (e.g., bars, liquor stores), and for the public warehousing and transporting of alcoholic beverages. General authority for the statutory and regulatory control of alcoholic beverages rests with the state government, particularly in the Division of Alcoholic Beverage Control overseen by the state's Attorney General.

Due to of the state's adherence to the principles of home rule, New Jersey law grants individual municipalities substantial discretion in creating ordinances that regulate the sale and consumption of alcoholic beverages within town limits. The number of retail licenses available is determined by a municipality's population, and may be further limited by the town's governing body. Given this, the availability of alcohol and regulations governing it vary significantly from town to town. A small percentage of municipalities in the state are "dry towns" that do not allow alcoholic beverages to be sold, and do not issue retail licenses for bars, liquor stores, or for restaurants to serve alcohol to patrons. Comparatively, other towns permit alcohol sales 24 hours a day. Retail licenses tend to be difficult to obtain, and when available are subject to exorbitant prices and fervent competition.

New Jersey history of taverns and alcohol production dates to its early colonial period. Colonial winemakers received recognition by the Royal Society of Arts for producing high-quality wine,[1] and a local distillery owner was asked by George Washington for its recipe for "cyder spirits."[2][3] Throughout the nineteenth and early twentieth centuries, the industry developed with the influx of European immigrants, specifically Germans and Italians, who presented a sizeable market for alcoholic beverages and brought with them old world winemaking, brewing, and distilling techniques.[1][4] With the rise of the temperance movement culminating in the enforcement of Prohibition (1919–1933), New Jersey's alcohol industry suffered and many breweries, wineries and distilleries either closed or relocated to other states.[5] The legacy of Prohibition restricted and prevented the industry's recovery until the state legislature began loosening restrictions and repealing Prohibition-era laws starting in 1981. Today, New Jersey's alcohol industry is experiencing a renaissance, and recently enacted laws provide new opportunities for the state's wineries and breweries.

Contents

Controlling authority

Statewide statutes and enforcement

New Jersey's laws and regulations regarding alcohol are overseen by the Department of Law and Public Safety's Division of Alcoholic Beverage Control (ABC), which is managed by the state's Attorney-General.[6][7] As of 2013, the current director of the Alcohol Beverage Control division is Michael I. Halfacre. Starting in 1738, towns in New Jersey began issuing liquor licenses to tavern keepers. Before Prohibition, despite the existence of many state statutes about the sale of liquor,[8] the regulation of alcoholic beverages in New Jersey was an almost exclusively local function, with wide variations among municipalities in licensing practices.[9]

In 1933, the 21st Amendment to the United States Constitution ended Prohibition, permitting states to regulate matters related to alcohol.[10][11] Immediately upon the end of Prohibition in 1933, New Jersey instituted the Alcoholic Beverage Control Law,[7][12] which established and granted rulemaking powers to the Division of Alcoholic Beverage Control.[9][13] The law also established a three-tier alcohol distribution system wherein, with minor exceptions, alcohol manufacturers may only sell to wholesalers, who may only sell to retailers, who may only sell to customers.[14] New Jersey's alcohol laws and regulations are respectively codified in Title 33 of the New Jersey Statutes, and Title 13, Chapter 2 of the New Jersey Administrative Code.[15][16] After New Jersey's 1947 Constitution was adopted and some departments were consolidated, the department was incorporated into the Division of Law and Public Safety under the New Jersey Attorney General's office.[13]

New Jersey's statutes define an alcoholic beverage as "any fluid or solid capable of being converted into a fluid, suitable for human consumption, and having an alcohol content of more than one-half of one per centum (1/2 of 1%) by volume, including alcohol, beer, lager beer, ale, porter, naturally fermented wine, treated wine, blended wine, fortified wine, sparkling wine, distilled liquors, blended distilled liquors and any brewed, fermented or distilled liquors fit for use for beverage purposes or any mixture of the same, and fruit juices."[17]

Municipal control

Ocean City, on the New Jersey shore, was founded in 1879 as a dry town. Ocean City has never issued a liquor license, forbids the sale of alcohol, and prohibits BYOB at restaurants.

New Jersey has a strong tradition of municipal home rule,[18] and towns wield considerable authority in the licensing and regulating of alcohol-related businesses, and coordinating this power with planning and zoning authorities. These powers include:[19]

Retail licenses for consumption or distribution are allocated in proportion to a municipality's population. Licenses permitting on-premises retail sale and consumption of alcoholic beverages (i.e. bars and restaurants) are allocated at a ratio of one license for 3,000 residents. Distribution licenses are available at a ratio of one license per 7,500 residents.[21] However, statutes permit the allocation of a minimum of one consumption and one distribution license to small towns with populations less than 1,000.[22] Given the regulatory latitude these municipalities exercise, the actual number of licenses extant in a municipality may be more or less depending on a variety of factors, including:

Because the law grants a municipality significant latitude in regulatory powers, as of 2013, 37 of the state's 565 municipalities are "dry towns" that prohibit the sale of alcohol.[24] Conversely, because of the grandfathering of licenses, several municipalities have a substantially higher ratio of licenses. For instance, the resort town of Wildwood, has a permanent population of 5,300, but has 61 active liquor licenses.[25]

Other authorities

Casinos in Atlantic City and federal enclaves (e.g., military bases, national parks) are not under the jurisdiction of either the Division of Alcoholic Beverage Control or municipal alcoholic beverage control boards. The New Jersey Division of Gaming Enforcement and the New Jersey Casino Control Commission are responsible for the regulation of alcoholic beverages at casinos.[26][27] Per Article I, Section 8, Clause 17 of the United States Constitution, the federal government may "exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings."[28] While some state laws do apply in federal enclaves, court decisions have exempted military bases and other federal lands from state and local alcohol laws.[29][30]

Liquor licenses and permits

New Jersey law provides for 29 distinct liquor licenses divided into the following five classes: Class A for manufacturers, Class B for wholesalers, Class C for retailers, Class D for transportation licenses, and Class E for public warehouses.[31] State law allows the Division of Alcoholic Beverage Control to create temporary permits "to provide for contingencies where it would be appropriate and consonant with the spirit of this chapter to issue a license, but the contingency has not been expressly provided for."[32] Special permits are allowed to range in price from $10 to $2000, are limited to 25 days per year for a given premises,[32] and currently there are 3 types of permits for non-licensees.[33][34] Excluding seasonal licenses and special permits, ABC licenses are issued for one year starting on July 1, and ending on June 30.[34]

Class A manufacturer's licenses

Type of license[31]Activity permittedFee for license (as of 2013)
Plenary Brewery License
  • to brew any malt alcoholic beverage
  • to sell to wholesalers and at festivals in the state
  • to sell and distribute out of state
  • to maintain a warehouse
$10,625
Limited Brewery License
  • to brew any malt beverage, not in excess of 300,000 barrels (31-gallon barrels) per year
  • to sell to wholesalers and at festivals in the state
  • to sell and distribute out of state
  • as part of a tour, sell beer for on-site consumption
  • offer samples to visitors
  • sell up to 15.5 gallons of beer (i.e., a keg) for consumption off-premises
  • sale of food is absolutely prohibited
  • to maintain a warehouse
$1,250 for up to 50,000 barrels
$2,500 for 50,000-100,000 barrels
$5,000 for 100,000-200,000 barrels
$7,500 for 200,000-300,000 barrels
Restricted Brewery License
  • to brew no more than 10,000 barrels per year
  • only for persons with a Plenary Retail Consumption License, and a dining facility
  • limit of 10 licenses to be held by a person
  • offer samples at off-premises charitable or civic events
  • to sell on-premises, to wholesalers, and at festivals in the state
$1,000 for first 1,000 barrels
$625 for each additional 1,000 barrels.
to sell to wholesalers:
  • $1250 for up to 1,000 barrels
  • $250 for each additional 1000 barrels
Plenary Winery License
  • 3 acres minimum required
  • to produce any fermented wines, blend, fortify or treat wines
  • to sell to wholesalers, directly to retailers, at festivals, or to churches (for religious purposes) in the state
  • to sell and distribute outside the state
  • to maintain a warehouse
  • offer samples to visitors
  • to sell at retail to consumers on the winery premises
  • to operate 15 off-premises sales rooms
  • to direct ship up to 12 cases per year to consumers in or out of state
$938 annual fee
$250 for each offsite salesroom
to sell to retailers:
  • $100 for up to 50,000 gallons per year
  • $250 between 50,000 and 100,000 gallons
  • $500 between 100,000-150,000 gallons
  • $1,000 up to 250,000 gallons.
Farm Winery License
  • to produce up to 50,000 gallons of wine per year
  • requires that products contain minimum 51% of grapes or fruit grown in New Jersey
  • to sell to wholesalers, directly to retailers, at festivals, or to churches (for religious purposes) in the state
  • to sell and distribute outside the state
  • to maintain a warehouse
  • offer samples to visitors
  • to sell at retail to consumers on the winery premises
  • 3 acres minimum required
  • to operate 15 off-premises sales rooms
  • right to sell direct to retailers
  • to direct ship up to 12 cases per year to consumers in or out of state
$375 for 30,000-50,000 gallons per year
$250 for 2,500 to 30,000 gallons
$125 for 1,000-2,500 gallons
$63 for less than 1,000 gallons
$100 fee for right to sell to retailers
$250 fee per offsite salesroom
Wine Blending License
  • to blend, treat, mix, or bottle wines
  • to sell to wholesalers in the state
  • to sell and distribute outside the state
  • to maintain a warehouse
$625
Instructional Winemaking Facility License
  • to instruct consumers in winemaking with the opportunity to participate directly in winemaking
  • to maintain a warehouse
$1,000
Out-of-State Winery License
  • requires a valid winery license in another U.S. state
  • requires that winery no more than 250,000 gallons produced per year
  • right to sell and distribute in New Jersey
  • to operate up to 16 off-site salesrooms
  • right to ship up to 12 cases per year to consumers in or out of state
  • right to sell directly to New Jersey retailers
$938 annual fee
$250 for each offsite salesroom
to sell to retailers:
  • $100 for up to 50,000 per year
  • $250 between 50,000 and 100,000 gallons
  • $500 between 100,000-150,000 gallons
  • $1,000 up to 250,000 gallons.
Plenary Distillery License
  • to manufacture any distilled alcoholic beverages
  • to rectify, blent, treat, or mix distilled alcoholic beverages
  • to sell to wholesalers in the state
  • to sell and distribute outside the state
  • to maintain a warehouse
$12,500
Limited Distillery License
  • manufacture alcoholic beverages made from fruit juices
  • to blend, treat, mix, compound with wine, and add sweetenings and flavors to make cordials and liqueurs
  • to sell to wholesalers in the state
  • to sell and distribute outside the state
  • to maintain a warehouse
$3,750
Limited Supply Distillery License
  • to bottle and rebottle alcoholic beverages distilled from fruit juices
  • to sell to wholesalers in the state
  • to sell and distribute outside the state
  • to maintain a warehouse
$313 per year for up to 5,000 gallons
$625 per year for 5,000-10,000 gallons
$1,250 without capacity limit.
Rectifier and Blender License
  • to rectify, blend, treat, and mix distilled alcoholic beverages
  • to fortify, blend, and treat fermented alcoholic beverages
  • to sell to wholesalers in the state
  • to sell and distribute outside the state
  • to maintain a warehouse
$7,500
Bonded Warehouse Bottling License$625

Class B wholesaler's licenses

Type of license[31]Activity permittedFee for license (as of 2013)
Plenary Wholesale License
  • to sell and distribute alcoholic beverages to retailers and wholesalers in the state
  • to sell and distribute out of state
  • to maintain a warehouse and salesroom
$8,750
Limited Wholesale License
  • to sell and distribute brewed malt alcoholic beverages and naturally fermented wines to retailers and wholesalers in the state
  • to sell and distribute out of state
  • to maintain a warehouse and salesroom
$1,875
Wine Wholesale License
  • to sell and distribute any naturally fermented, treated, blended, fortified and sparkling wines to retailers and wholesalers in the state
  • to sell and distribute out of state
  • to maintain a warehouse and salesroom
$3,750
State Beverage Distributor's License
  • to sell and distribute unchilled, brewed malt alcoholic beverages in original containers only, in quantities of at least 144 fluid ounces, to retailers or directly to customers
  • to sell and distribute chilled draught malt alcoholic beverages in kegs, barrels or other similar containers of at least one fluid gallon, to retailers or directly to customers
  • to sell and distribute out of State
  • to maintain a warehouse and salesroom
  • maximum of 72 may be issued in the state
$1,031

Class C retailer's licenses

Type of license[31]Activity permittedFee for license (as of 2013)
Plenary Retail Consumption License
  • to sell alcoholic beverages in open containers, and sell package goods on a limited basis
  • package goods may only be displayed for sale on the premises’ perimeter walls or behind the bar
  • premises cannot be a grocery, delicatessen, drug store or mercantile business
  • permitted to hold tastings and tasting dinners
  • licensee can obtain up to two Restricted Brewery Licenses
  • may sell at off-premises events in open containers with Catering Permit (up to 25 times per year)
  • number of licenses per municipality is restricted
fee set by municipality: $250–$2500
$100 per day for Catering Permit
Plenary Retail Consumption License with Broad Package Privilege (Broad C License)
  • same rights and limitations as a Plenary Retail Consumption License, except the sale of package goods is not restricted
  • license is no longer being issued but an existing one may be renewed or transferred
  • number of licenses per municipality is restricted
fee set by municipality: $250–$2500
$100 per day for Catering Permit
Hotel/Motel License
  • for hotels or motels containing at least 100 guest sleeping rooms
  • same rights and limitations as a Plenary Retail Consumption License
  • number of licenses per municipality is not restricted
fee set by municipality: $250–$2500
$100 per day for Catering Permit
Plenary Retail Consumption License (Theater Exception)
  • for non-profit musical or theatrical performances
  • must have seating capacity of 1,000 persons or more
  • alcoholic beverages must be sold in open containers
  • consumption of alcoholic beverages only during performance, and 2 hours before and after
  • number of licenses per municipality is not restricted
fee set by municipality: $250–$2500
Seasonal Retail Consumption License
  • to sell alcoholic beverages from either 1 May to 14 November or from 15 November to 30 April
  • same rights and limitations as a Plenary Retail Consumption License, but only for 6 months per year
  • number of licenses per municipality is restricted
fee set by municipality: 75% of the fees for a Plenary Retail Consumption License
$100 per day for Catering Permit
Plenary Retail Distribution License
  • to sell alcoholic beverages in sealed containers for consumption off-premises
  • permitted to hold tastings
  • number of licenses per municipality is restricted
fee set by municipality: $125–$2,500
Limited Retail Distribution License
  • to sell any unchilled, brewed malt alcoholic beverages in sealed containers for consumption off-premises
  • for use in a grocery store, meat market, or delicatessen
  • license is no longer being issued but an existing one may be renewed or transferred
  • number of licenses per municipality is not restricted
fees set by municipality: $31–$63
Plenary Retail Transit License
  • to sell any alcoholic beverage for consumption only on trains, airplanes, limousines and boats while in transit
  • number of licenses per municipality is not restricted
$375 for train or air transport
$31 for vehicle for limousines
$63 for boats up to 65 feet in length
$125 for boats 65–110 feet in length
$375 on boats more than 110 feet in length
Club License
  • issued only to non-profit organizations
  • group must have at least 60 voting members and have possessed a clubhouse for at least 3 years, or be a chapter of a state or national organization
  • only for sale of alcoholic beverages to be consumed on premises to bona fide club members and their guests
  • prohibited from selling package goods
  • prohibited from selling alcohol beverages to groups which rent their facilities
  • number of licenses per municipality is not restricted
fee set by municipality: $63–$188

Class D transportation licenses

Type of license[31]Activity permittedFee for license (as of 2013)
Transportation License
  • to transport alcoholic beverages into, out of, through and within the state of New Jersey
  • to maintain a warehouse
$625.

Class E public warehouse licenses

Type of license[31]Activity permittedFee for license (as of 2013)
Public Warehouse License
  • to receive, store and warehouse, alcoholic beverages in a licensed public warehouse
  • does not authorize any transportation of said beverages
$500.
Broker's License
  • to act as a broker (for a fee or commission) in the purchase and sale of alcoholic beverages, on behalf of manufacturers and wholesalers in the state or out of the state.
  • cannot warehouse or purchase alcohol beverages in his or her own name
  • cannot sell to wholesalers or retailers in the state
$500

Special permits

Type of permit[32]Activity permittedFee for permit (as of 2013)
Social Affair Permit
  • only for events run by non-profit organizations
  • alcoholic beverages must be sold in open containers
  • permitted to hold tastings and tasting dinners
  • limit of 12 one-day permits per year per organization
  • limit of 25 one-day permits per year per location
  • must have approval of the municipal police chief, and the clerk of the municipal alcoholic beverage control board
$100 per day for civic, religious, and educational organizations
$150 per day for other non-profit organizations
Special Permit for a Golf Facility
  • designed for golf courses which are neither country clubs nor government-owned
  • golf course must have 18 holes, and be at least 5000 linear yards (i.e., not a driving range or miniature golf course)
  • alcoholic beverages must be sold in open containers
  • alcohol may only be served during golf-related events
$2000
Special Concessionaire Permit
  • for the sale of alcoholic beverages in facilities owned by the state, a county, or a municipality
  • alcoholic beverages must be consumed on-site
  • permitted to hold tastings and tasting dinners
  • may sell at off-premises events in open containers with Special Event Permit (up to 25 times per year)
$2000
$100 per day for Special Event Permit

Municipal issues

Availability of retail liquor licenses

An iconic sign lights up a liquor store in Wildwood, which has more than 60 active liquor licenses.

The number of Class C retail licenses for bars, restaurants, and liquor stores is limited by population and often by municipal ordinances. Licenses are typically obtained from existing licensees who choose to sell, or when a new license is offered as a town's population grows. As a result, the price for a retail license is often prohibitively expensive. The sale of a new license is usually conducted by public auction. The intense competition can benefit a town by generating several hundred thousand dollars of revenue from the highest bidder. A 2006 license auction in Cherry Hill, New Jersey set the state record at $1.5 million.[35]

Supermarkets, convenience stores, and gas stations in New Jersey rarely sell alcoholic beverages because state law prohibits any person or corporation from possessing more than two retail distribution licenses.[36] While licenses for bars, restaurants and liquor stores are limited, other retail licenses are not. Class C licenses can be granted without limit for common carriers (e.g., limousines, boats), private clubs with a minimum of 60 members, hotels with at least one-hundred rooms, and theatres with at least 1,000 seats.[34]

Special permits exist to allow for the sale of alcoholic beverages at golf courses, government-owned facilities, and at social events run by non-profit organizations (e.g., church carnivals).[34] A restaurant in New Jersey without a liquor license can sell wine from a New Jersey winery by becoming a sales outlet of the winery.[37] Since the early 1990s, there have been a handful of unsuccessful proposals to create a separate restaurant license allowing eating establishments to sell beer and wine. Such proposals have been strongly opposed by current retail license holders who believe that it will decrease their income, and the value of their liquor license.[38]

Dry towns

Some municipalities, particularly in South Jersey are dry towns, where no alcohol is served or sold. Several of these towns are dry because of their origins as religious communities, usually associated with the Quaker, Methodist or other Protestant denominations.[39] For example, the seaside resort town of Ocean City has been dry since it was founded in 1879 by four Methodist clergymen. Local ordinances in Ocean City prohibit restaurant patrons from bringing their own wine or beer, unlike other towns that permit "bring your own bottle" (BYOB) at unlicensed establishments.[39] In recent years, several New Jersey municipalities have questioned whether they ought to remain dry towns or permit the sale of alcohol within town limits.[39] Because of a desire to attract new businesses and increase property tax revenue, towns that prohibit alcohol sales frequently have public referenda on whether they should remain dry. As of 2013, there are 37 dry municipalities in New Jersey.[24][40]

Hours of operation and other licensing regulations

Atlantic City, a gambling mecca along the Jersey Shore, is one of the few municipalities in New Jersey that allow the sale of alcohol 24 hours per day at casinos and bars.

The hours of sale for on-premises consumption are regulated by local ordinance, and closing times vary by town.[41] Atlantic City does not have closing hours, and alcohol can be purchased at its casinos and local bars 24 hours per day.[42] State law provides that except in Newark and Jersey City, no hard liquor package goods may be sold before 9 am and after 10 pm any day of the week, and this can be restricted further through local ordinance. However, liquor stores may sell beer and wine during any hours that on-premises sales are allowed.[26]

New Jersey regulations for liquor stores and bars are extensive. Licensed establishments may not offer nudity. Because of concerns about excessive drinking and drunk driving, it is illegal to sell liquor below cost, charge a flat fee for unlimited drinks (except for private parties and on New Year's Eve), offer any promotion that is contingent on drinking a certain amount of alcohol, allow patrons to remain after closing time, or sell liquor at a drive-through window.[26][43] Bars and clubs are prohibited from having a 'ladies' night' or any pricing which is regarded as discriminatory.[44] Police officers are prohibited from working for licensed businesses in the same town as where they are employed as an officer, and some municipalities require fingerprinting for all liquor store and bar employees.[26]

Gambling and gambling paraphernalia are prohibited at licensed establishments, unless the business has a license from the New Jersey Lottery to sell lottery tickets, from the New Jersey Racing Commission to have horse racing or off-track betting, or from the New Jersey Legalized Games of Chance Control Commission to allow a charitiy to run a bingo or raffle. The state ABC broadly defines gambling paraphernelia to include claw and crane machines, casino-themed video games, football pools, and door prizes, irrespective of whether any profit is being made by the business. However, card games, darts, billiards and other games are permitted as long as no money is exchanged, and no prizes are given.[26]

ABC regulations permit a bar owner or employee to give away a free drink as long as it is not advertised, allow businesses to issue free or complimentary drink coupons (up to one per day per patron), and allow hotel and motel licensees to give guests complimentary bottles of wine on special occasions. Licensed establishments are permitted to institute dress codes, cover charges, and minimum age restrictions. Liquor stores are allowed to conduct tastings of beer, wine, and spirits. Bars, restaurants, state concessionaires (e.g., PNC Bank Arts Center), and non-profit organizations with a special permit can host both tastings and tasting dinners, the latter of which permits larger sample sizes.[26]

BYOB: Bring Your Own Bottle

Because several restaurants are unable or choose not to get an on-premises retail and consumption license (Class C), the practice of "bring your own bottle" (BYOB) is prevalent in establishments statewide.[38] Patrons are permitted to bring their own beer or wine to a restaurant that does not possess a liquor license, insofar as there is no municipal prohibition against it.[45] By law, a BYOB restaurant may not allow consumption of hard liquor or mixed drinks, nor may they allow consumption of beer or wine by individuals under the age of 21, by individuals who are visibly intoxicated, or during hours in which the sale of these products is prohibited by licensees in that municipality (i.e., after closing time).[45][46] Additionally, establishments offering BYOB are not allowed to 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"[47] A restaurant or other business with a retail consumption license may allow consumers to bring their own beer or wine, though many such restaurants prohibit BYOB for financial reasons.[48]

New Jersey law prohibits strip clubs and "sexually oriented business", where stripteases and erotic dances are regularly performed, from offering both full nudity and alcohol sales.[49] Establishments that possess a retail license and serve alcohol can only offer partially clothed services such as go-go dancing (typically in bikinis or lingerie).[26][50] Clubs that are not licensed to serve alcohol will work around the restriction by implementing a bring your own bottle (BYOB) policy and operating as a "juice bar." Juice bars have the appointments of full bars but only serve non-alcoholic beverages such as water, fruit juice, and flavored carbonated beverages. Such a bar could double as a service counter for the storage of BYOB material and offer ice and mixing services to create mixed drinks using the customer-purchased ingredients. Recent court decisions have stated that municipalities that allow BYOB policies for restaurants must allow the same practices for strip clubs.[51][52]

Alcohol production and distribution

Anheuser-Busch, located on Route 1 & 9 in Newark, is both the largest and oldest of New Jersey's 26 active breweries.

In 1981, the state legislature began to repeal and reform the laws that governed the production of alcoholic beverages in the state. With the passing of the New Jersey Farm Winery Act in 1981, and laws providing for licenses for brewpubs and microbreweries in the 1990s, these two industries have grown significantly and the number of wineries and breweries have steadily increased. In February 2013, New Jersey issued the first new distillery license since before Prohibition,[53] and legislation has been proposed to make it easier for craft distilleries to be established in New Jersey.[54][55] As of 2013, New Jersey currently has 46 wineries,[56][57] 26 breweries and brewpubs,[57][58] and 2 distilleries.[3][53][57]

Wineries

New Jersey growers began to produce wines during the colonial period. In 1767, two landowners, Edward Antill and William Alexander, Lord Stirling received recognition for their successful efforts from the Royal Society of Arts in London. The Society had challenged colonists in Britain's North American colonies to cultivate vinifera grapes and produce "those Sorts of Wines now consumed in Great Britain."[2] Shortly after, Antill wrote an 80-page instructional essay on grape cultivation and winemaking that was published in the Transactions of the American Philosophical Society.[59][60]

While the cultivation of grapes and fruit trees supported a flourishing wine industry in the late nineteenth and early twentieth centuries, the effects of Prohibition (1919–1933) and a legacy of restrictive laws constraining the industry's recovery subsequent to the its repeal, practically devastated the industry.[5] For fifty years after the repeal of Prohibition, New Jersey was limited by law to a ratio of one winery license for every 1,000,000 state residents, which by 1980 effectively allowed for only seven wineries. The growth of the state's winery industry has been bolstered by the repeal, starting in 1981, with the New Jersey Farm Winery Act, of many Prohibition-era laws and allowed many small growers to open new wineries.[61][62]

As of 2013, New Jersey has 46 licensed and operating wineries with several more prospective wineries in various stages of development. These wineries are growing Vitis vinifera, Vitis labrusca, or French hybrid wine grapes, and producing or offering for sale over forty types of wines. Many New Jersey wineries sell their products at festivals that are held annually around the state.[63] In 2010, 1.72 million gallons (approximately 716,000 cases) of wine were produced by New Jersey wineries; making it the seventh largest wine-producing state in the United States. A considerable portion of New Jersey wine sales are non-grape fruit wine, particularly apple, blueberry, raspberry, and cranberry wines. These fruits are associated with New Jersey and can be purchased from many nearby farms throughout the Garden State.[64] New Jersey’s 46 wineries generate between US$30,000,000-$40,000,000 of revenue annually.[65]

Breweries

The first brewery in New Jersey was established in a fledgling Dutch settlement in what is now Hoboken when the state was part the Dutch New Netherlands colony. It was short-lived and destroyed by a band of Lenape in 1643 during Governor Kieft's War (1643–1645).[66] Large German immigrant populations in Newark and Jersey City led to the establishment of a healthy brewing industry in the nineteenth and early twentieth centuries.[67] Brewing beer became the fourth-largest industry in Newark,[68] and names like Kruger, Hensler, Feigenspan among the leading industrial families in Newark.[69][70][71]

Later, regional (and later national) brands Ballantine, and Rheingold, and Pabst, among others operated large breweries in Newark and surrounding towns.[68] With accusations of German propaganda and persecution of German-Americans during World War I, many of the state's brewers relocated to the Midwestern United States[72] Prohibition closed many of the remaining breweries in the state. For instance, of Newark's 27 breweries before Prohibition, none of them exist today.[73] As the industry reorganized and consolidated in the 1970s and 1980s to compete nationally, the larger producers like Ballantine (in the 1960s) Rheingold (in 1977), Pabst (in 1985) closed their doors.[68]

Presently, the state is home to one large-production brewery, Anheuser-Busch in Newark, which opened in 1951 and is used for brewing Budweiser and Rolling Rock. New Jersey offers a limited brewery licenses for microbreweries and a restricted brewery license for brewpubs that has allowed the industry to grow in recent years.[74] In 1995, the Ship Inn Restaurant and Brewery in Milford became the first brewpub in New Jersey, since then the industry has expanded to 26 breweries, most of which are microbreweries or brewpubs.[68][75] In 2010, New Jersey craft brewers produced 32,000 barrels (992,000 gallons) of craft brew.[76] In 2012, New Jersey liberalized its licensing laws to allow microbreweries to sell beer by the glass as part of a tour, and sell up to 15.5 gallons (i.e., a keg) for off-premises consumption. The same legislation permits brewpubs to brew up to 10,000 barrels of beer per year, and sell to wholesalers and at festivals.[77][78]

Distilleries

New Jersey does not presently have any active distillery production facilities, although two are licensed and new producers are seeking licensing and regulatory approval. Several prospective distillers have cited the excessive cost of the license ($12,500 per year) and the ambiguity of lower-level licenses as obstacles for opening businesses in the state. These craft distillers have pressured lawmakers to propose for legislation opening the way for craft distilleries to be established.[55][79]

New Jersey has had a long distilling history dating to the colonial era when large landowners converted surplus fruit into brandy, sugar into rum, and grain into whiskey. Until recently, New Jersey had only one licensed distillery, Laird & Company in Scobeyville (Colts Neck). Founded by Robert Laird, it is the oldest licensed distillery in the United States and received License No. 1 from the U.S. Department of the Treasury in 1780. George Washington, who was acquainted with the distillery's owner, once asked him for his recipe for "cyder spirits."[3] By 1834, New Jersey boasted 388 distilleries.[80][81]

Today, Laird is the nation's only remaining producer of applejack. However, it is worth noting that presently none of the company's distilling takes place in New Jersey. Laird's obtains all its apples from Virginia's Shenandoah Valley and distills its products in Virginia. Distilling at its New Jersey facilities ceased in 1972 and Laird's only blends, ages and bottles its products in Scobeyville.[3] In February 2013, the state issued a distillery license to Jersey Artisan Distilling of Fairfield, which expects to produce rum within the year.[82][83] Another prospective distiller, Cooper River Distillers in Camden is on the path to obtaining a license in the near future.[55] These will be the first distilleries to open in the state since the beginning of Prohibition in 1919.[55]

Direct shipping to consumers

Before 2004, New Jersey permitted in-state wineries to directly ship products to in-state customers. However, the state did not allow out-of-state producers to ship to New Jersey residents or permit New Jersey wineries to ship to out-of-state customers. This practice was declared unconstitutional by the United States Supreme Court in 2005 in a case from Michigan and subsequently New Jersey's statute was struck down by the U.S. Court of Appeals for the Third Circuit in 2010 because such limitations were found to violate the Interstate Commerce Clause of the United States Constitution.[84][85]

On 17 January 2012, New Jersey governor Chris Christie signed into law a bill that legalised direct shipping from wineries to consumers, and permits New Jersey wineries to open as many as 15 offsite retail tasting rooms in the state.[86][87] The law allows wineries that make less than 250,000 gallons of wine annually, which includes all of the New Jersey's wineries, to ship up to 12 cases of wine to per year to any person over the age of 21 in New Jersey or any other state that allows wine shipments.[86][88] Because this prohibits 90% of wine made in the United States, but does not effect New Jersey's small wineries, proponents of the law fear that this section of the law will be struck down as unconstitutional.[86] The U.S. Court of Appeals for the First Circuit had struck down a similar limit in Massachusetts in 2008 in light of the United States Supreme Court decision addressing direct shipping laws a few years earlier.[89][90]

Federal law prohibits alcoholic beverages from being shipped through the mail.[91][92] New Jersey effectively prohibits the shipment of beer and spirits to customers by mandating a license to transport alcohol, but not having any class of liquor license that grants permission to ship beer or spirits.[93] United Parcel Service (UPS) and Federal Express will ship wine to a person's home, but will only deliver beer or hard liquor to a licensed business.[94] Although uncommon, it is legal for a liquor store to deliver alcoholic beverages by car or van to a person's home.[95] ABC regulations mandate that the alcoholic beverages being delivered are paid for in advance, that they are received by someone 21 years of age or older, and that they take place at times when the licensed establishment is legally allowed to be open.[26]

Legal drinking age

Underage drinking laws

Exceptions to New Jersey's Underage Drinking Laws
  • Religious service - minors can be served alcohol, and may possess and consume alcohol at a religious observance, ceremony or rite.
  • Employment - Individuals 18 or older who own or work for a licensed establishment or BYOB restaurant can possess, sell, serve, and transport alcohol, and purchase alcohol from a manufacturer or wholesaler. They cannot consume alcohol or purchase alcohol from a retailer (e.g., liquor store, bar).
  • Private location (with adult relative) - minors may be served alcohol, and may possess and consume alcohol when in a house, backyard, hotel room, private room at an unlicensed restaurant, or other area without public access, and in the presence of a relative who is at least 21 years old.
  • Private location (without adult relative) - minors may possess and consume alcohol when in a house, backyard, hotel room, private room at an unlicensed restaurant, or other area without public access, and in a town without an ordinance prohibiting it (around 1/4 of municipalities). It is not legal to serve a minor or knowingly allow a property to be used for underage drinking, but it is legal for the person to consume alcohol.

A person must be 21 years of age in New Jersey to purchase alcoholic beverages in a retail establishment, or possess or consume alcoholic beverages in a public (e.g., park, school) or semi-public area (e.g., restaurant, automobile).[96][97] However, a person only needs to be 18 years old to own a liquor license, or sell or serve alcoholic beverages (e.g., waiter, supermarket cashier).[98] State law also prohibits an underage person from misrepresenting their age in an licensed establishment (e.g., display fake identification).[96]

It is illegal to serve alcohol to a person under 21 years old, entice an underage person to drink, knowingly allowing underage individuals to consume alcohol on a property that they own or lease, or possess alcoholic beverages (even if unopened) on public school property without the written consent of the school board or school principal.[99][100] State law grants an exemption for religious services, and for parents and guardians over the age of 21 who serve alcohol to their own children in a private location (e.g., at a house, not at a restaurant).[99]

New Jersey and all other U.S. states comport with the requirement of the National Minimum Drinking Age Act of 1984, which sought to set a national standard the age of 21 years as the minimum age for purchasing and publicly possessing alcoholic beverages.[101] As an incentive to coerce state legislatures to comply, Congress tied a state's failure to enact a drinking age at 21 to a punitive decrease in a state's apportionment of federal highway funding.[102] Federal law requires colleges and universities that accept federal financial aid institute policies that sanction students who violate underage drinking laws and other alcohol laws, and track the number of liquor laws violations.[103] However, The Chronicle of Higher Education has reported that many colleges fail to comply with these laws, and federal enforcement is minimal.[104]

There is no state law prohibiting consumption of alcohol by minors while on private property, but many municipalities prohibit underage consumption unless parents or adult relatives are present.[105][106] Public schools are not permitted to have "24/7" conduct policies which sanction students for alcohol consumption outside of school.[107][108] Minors are allowed to enter licensed establishments, and state law does not prohibit bars and nightclubs from having events such as "teen nights," or "18 to party, 21 to drink," although some municipalities do impose restrictions.[26][109] Furthermore, it is not illegal to be in a location where under underage drinking is occurring, and New Jersey does not have an "internal possession" statute criminalizing an underage person with alcohol in their body.[110][111]

Penalties for underage drinking

The state underage drinking statute is a disorderly persons offense (misdemeanor), which upon conviction is punishable by up to 6 months in jail (rarely imposed),[112] a $500–$1000 fine, and a mandatory 6-month suspension of the person's driver's license.[96][97] The penalties are the same for using fake identification.[96] Individuals who unlawfully serve alcohol to an underage person, entice an underage person to drink, knowingly permit underage drinking on their property, or bring alcohol onto a public school property face similar sanctions, except that their driver's license will not be suspended.[99][100] A licensed business which serves alcohol to a person under age 21, even unintentionally, may be fined or have their liquor license suspended or revoked.[26][113]

Violation of a municipal underage drinking statutes is a non-criminal offense, which has a fine of $250 for the first offense, and $350 for subsequent offenses.[105] A person's driver's license can be suspended for a municipal underage drinking conviction, but usually it just results in a fine without a court appearance being required.[114] There is a "good samaritan" defense to an underage drinking charge where if an underage drinker calls for medical help for another underage drinker who is ill, and cooperates with law enforcement and medical responders, neither may be prosecuted.[115] It is common for a state underage drinking charge to be downgraded to a municipal ordinance violation in order for the defendant to avoid a criminal record and a suspended license.[116]

History of New Jersey's drinking age

The first drinking age law in New Jersey was passed in 1846. It allowed the parents of a student under the age of 21 to sue for $10 (approximately $250 after adjusted for inflation)[117] a tavern keeper or shopkeeper who supplied alcoholic beverages to their children.[118] In 1880, a criminal statute was enacted, fining businesses that sold liquor to individuals under 18 years of age if their parents had told the establishment not to sell to their child.[119] The law was amended in 1888 to eliminate the parental consent provision, thus making it illegal in all cases for a tavern or liquor store to sell alcohol to person under 18 years old.[120] In 1908, the penalties were increased so that a tavern keeper who served a minor could be jailed.[121] Upon the start of Prohibition, New Jersey repealed its laws regarding the sale of alcohol to minors since the Eighteenth Amendment to the United States Constitution prohibited almost all liquor sales.[122][123]

Upon repeal of Prohibition and the passage of the Alcoholic Beverage Control Law, the ABC issued regulations that prohibited bars and liquor stores from selling alcohol to a person under the age of 21, which was considered the age of majority at that time.[124][125] In 1939, it became a criminal offense to sell alcohol to a person under the age of 21, and for a person under the age of 21 to purchase or consume alcohol in a licensed establishment.[124][126] The state criminalized the underage possession of alcohol in motor vehicles and other public areas in 1957, possibly in response to young New Jerseyans travelling to New York, where the drinking age was 18, and returning home with liquor.[127][128] For many years laws against underage drinking and the serving of alcohol to minors did not apply on private property, though an adult who supplied a substantial amount of liquor to underage person could possibly be prosecuted for contributing to the deliquency of a minor[129] Furthermore, arrests and criminal prosecution for underage drinking in bars or public areas was very uncommon before the 1980s.[130]

New Jersey's drinking age was lowered to 18 in 1973 as part of a broader legal change which reduced New Jersey's age of majority from 21 to 18.[131][132] Much of the impetus for lowering the drinking age to 18 was to grant returning Vietnam veterans the right to purchase alcohol.[133] Possibly because of to concerns about 18-year-old high school students being able to legally purchase liquor, and then illegally consume it school,[134] the state raised the drinking age to 19 in 1980.[135][136] Citing statistics that indicated an increase in automobile fatalities among drivers under the age of 21,[133] the drinking age was raised back to 21 in 1983.[136][137] At the same time, the penalties for underage drinking were increased to include a mandatory driver's license suspension.[137] In 1985, the state made it illegal for an adult to give alcohol to a person under the age of 21, with exception for religious services and parents serving alcohol to their own children at home or in a private area.[138][139]

Historically, a few municipalities had ordinances against underage drinking on private property, but a class action lawsuit in 1998 against the town of Avalon nullified these laws.[140] In 2000, the New Jersey Legislature passed a bill criminalizing underage consumption of alcoholic beverages on private property[141] Governor Christine Whitman pocket vetoed the bill over privacy concerns: "While I completely support the intent of the bill, I am concerned that the bill's prohibitions could be construed to apply to situations in which an underage person consumes even a small amount of alcohol under the watchful eye of an adult family member."[142] Later that year, Whitman signed a revised bill that allowed municipalities to pass ordinance prohibiting underage drinking on private property.[143] Besides giving municipalities a choice on whether to implement such a policy, the revised bill imposed substantially less penalties on underage drinkers, and the new law made an exception for alcohol provided by any relative, not just a parent or guardian.[144]

Drunk driving

DUI laws

Like all other US states, New Jersey sets a 0.08 blood alcohol content (BAC) as the threshold for intoxication when operating a motor vehicle (e.g., automobile, boat). It is possible to be charged with driving under the influence (DUI) with an BAC level below 0.08, but under 0.08, there is a presumption that the driver is not intoxicated. State law prohibits individuals under the age of 21 from driving if their BAC of 0.01 or more, prohibits the operation of a commercial vehicle with a BAC of 0.04 or more, and mandates that drivers submit a breath sample if requested by a police officer.[145][146] To be convicted of DUI in New Jersey, a person must be operating or attempting to operate a motorized vehicle; thus activities as sleeping in a car while intoxicated[147] or bicycling while drunk are not illegal.[148]

Drivers are not legally required to take field sobriety tests, but these tests are admissible in court.[149] The Alcotest has replaced the Breathalyzer as the standard device for determining blood alcohol level.[149] When a driver is arrested for DUI, the police are prohibited from using force to obtain a breath, blood, or urine sample, and must warn the driver of the consequences of refusing a breath sample.[150][151] In 2010, the New Jersey Supreme Court overturned the breath sample refusal conviction of a non-English speaking driver, ruling that drivers must be notified of the law in a language that they understand.[152][153]

New Jersey differs from all other states (except Wisconsin) in that it classifies DUI as a traffic violation, and not a criminal offense, except in cases of serious injury or death.[154] Because it is not a criminal offense, individuals charged in New Jersey with DUI and other related offenses are not fingerprinted, do not have the right to a jury trial, DUI arrests and convictions are not submitted to the FBI's NCIC criminal database, and DUI arrests and convictions cannot be expunged.[151][155] Statutory criminal defenses (e.g., duress, entrapment) are not available for DUI,[156] and in State v. Hammond, the state Supreme Court upheld the conviction of a person who drove after unknowingly having his drink spiked with alcohol.[157] However, common-law criminal defenses are available in DUI cases, and a state appellate court reversed the conviction of a person who drove while intoxicated in order to escape assailants, citing the doctrine of necessity.[158]

Penalties for DUI

A poster from 1937 warning about the dangers of drunk driving. New Jersey instituted its first DUI law in 1909.

Penalties for DUI vary by level of intoxication and number of previous convictions. A first offense DUI with a BAC level of less than 0.10 faces a fine of $250 to $400, an automobile insurance surcharge of $1000 per year for 3 years, 12 hours of alcohol education, a 3-month license, and imprisonment for up to 30 days (rarely imposed).[149] If the driver's BAC level is 0.10 or greater, the fine increases to $300 to $500, and the license suspension increase to 7 to 12 months. If the driver's BAC level is 0.15 or greater, the driver will be required to have an ignition interlock device installed in their car for 6 to 12 months after they have their license restored.[145] New Jersey does not have administrative license revocation, and thus a suspected drunk driver's license is not suspended until they are convicted.[159]

A person under 21 years of age who is convicted of driving with a BAC level of at least 0.01, but less than 0.08 will have their driver's license suspended for 1 to 3 months, be required to perform 15–30 hours of community service, and take part in an alcohol education program. Penalties for refusal to submit a breath sample are the same as driving with a BAC over 0.15. An individual with a commercial driver's license (CDL) is subject to a 1-year suspension of their CDL for the first offense, and a lifetime CDL suspension for repeat offenses if they drive a commercial vehicle with a BAC of 0.04 or greater, drive an automobile with a BAC of 0.08 or greater, or refuse to submit a breath sample.[146] More severe penalties may be imposed if the DUI took place within 1000 feet of a school, or if there was a juvenile in the vehicle.[145] DUI accidents resulting in serious injury or death are considered indictable crimes.[149]

New Jersey prohibits plea bargaining in DUI cases unless the prosecutor believes there is insufficient evidence to prove the case, and New Jersey does not offer hardship (work) licenses for people convicted of DUI.[151] Because DUI is not a criminal offense in New Jersey, defendants are ineligible for pretrial intervention (PTI) and other diversion programs.[160][161] However a previous DUI conviction, in New Jersey or in another state, cannot used used to disqualify a person from such programs,[162] and individuals charged with an indictable offense stemming from drunk driving (e.g., cases involving serious injuries or eluding arrest) are eligible for PTI.[160][163] A person convicted of DUI is barred from recovering accident-related damages from other drivers, but may be able to sue the business or person who served them alcoholic beverages.[164][165]

For a second DUI conviction in a 10-year period, irrespective of BAC level, there is a fine of $500–$1,000, 2–90 days imprisonment, a 2-year license suspension, an automobile insurance surcharge of $1,000 a year for 3 years, and installation of an ignition interlock device for a 1 to 3 years after license restoration. A person who has 3 or more DUI convictions and a gap of less than 10 years years since the last conviction incurs a fine of $1,000, 6 months imprisonment, a 10-year license suspension, an automobile insurance surcharge of $1,500 a year for 3 years, and installation of an ignition interlock device for 1 to 3 years after license restoration.[145] Jail sentences issued in New Jersey for DUI are often served through work release programs (e.g., weekends in jail).[149]

History of New Jersey's drunk driving laws

New Jersey first established drunk driving laws in 1909, making it a disorderly persons offense (misdemeanor).[166][167] In 1921, DUI was converted to a traffic violation with a 1-year license suspension for the first violation, and 5-year suspension for repeat violations.[168] Penalties were increased in 1926 to a 2-year suspension, and a lifetime suspension and a mandatory 3 months in jail for repeat offenses.[169] In 1951, because of concerns about the evidence needed to prove "intoxication", the New Jersey Legislature amended the DUI statute to state that a driver with a BAC of 0.15 or greater was presumed to be intoxicated.[170][171] A driver with a BAC of 0.15 or greater could be acquitted if they could should that they were not physically intoxicated.

Because of new ideas about the treatment of alcoholism, the lifetime suspension was downgraded to a 10-year suspension in 1952.[166][172] DUI prosecutions remained difficult in cases when drivers refused to take a Breathalyzer test, and so in 1966, the state passed a law which authorized suspension of a person's driver's license for refusing to submit a breath sample.[152][173] In 1977, the BAC limit was reduced to 0.10, but the law was modified to differentiate between the second and third offenses, with lesser penalties for first and second convictions.[170][174] In 1983, the state established a "per se" rule wherein a person over the limit was considered drunk in all cases (i.e., not just a presumption).[175] In 1992, the 0.01 BAC limit for individuals under the age of 21 was instituted,[176] and in 2003, the 0.10 BAC limit was reduced to 0.08 to comply with federal highway funding requirements.[177]

Other alcohol-related legal issues

Open container and public consumption laws

It is legal to consume alcohol beverages on New Jersey Transit trains and buses.

It is illegal in New Jersey to have an open container of alcohol in the passenger portion of an automobile, but open bottles of alcohol may be transported in the trunk of a car, and consumption of alcohol on a bus, train, taxi, limousine, or boat is permitted.[178][179] The penalty for having an open container of alcohol in a car is $200 fine for the first offense, and a $250 fine or 10 days of community service for repeat violations.[180] The state Motor Vehicle Commission does not impose license points for open container convictions, but some automobile insurance companies impose a surcharge for this violation.[181] New Jersey's law on open containers in motor vehicles is compliant with Transportation Equity Act for the 21st Century (TEA-21), a federal act passed in 1998 which reduces the highway funding of states that do not prohibit open containers in passenger areas of automobiles.[182][183]

New Jersey's state parks and forests prohibit the possession or consumption of alcoholic beverages except for pre-approved events.[184] There is no state law against public consumption of alcohol in other locations, but most municipalities have open container laws prohibiting or restricting public consumption. The fine for alcohol possession in a state park is $71, whereas municipal fines for public consumption violations can be as high as $2000, although they are generally much lower.[114][185] Per the Alcoholism Treatment and Rehabilitation Act (ATRA), public intoxication without accompanying disorderly behavior is not a criminal offense,[186] and municipalities are prohibited from making ordinances against public intoxication.[187][188] New Jersey law allows a police officer to take people found to be intoxicated in public to their residence or to a medical facility.[189]

Purchasing and home production restrictions

Unlike many other states, New Jersey imposes no restrictions on the types or quantities of alcoholic beverages that a person of legal age may purchase. Grain alcohol, caffeinated alcoholic beverages, and absinthe can be legally sold, and state law imposes no limitations on the alcohol content of beer or wine.[190][191] New Jersey does not require kegs to be registered, and state ABC regulations prohibit municipal keg registration laws.[111][192] A resident can import any amount of alcohol into the state for personal use, but a $50 permit is required if more than 3 gallons of beer, 1 gallon of wine, or a half-gallon of spirits are being imported within a 24-hour period.[193][194] Any person who is 21 years or older may produce up to 200 gallons of beer or wine per year. No permit is required, but any brewing or winemaking must take place at a private home or non-commercial property, and any beer and wine produced cannot be sold.[195][196] However, it is a criminal offense to possess an unregistered still, or distill any amount of hard liquor.[197]

Dramshop liability and social host liability

Bars and restaurants are considered strictly liable for their patrons behavior, and liquor licenses can be suspended or revoked if a customer engages in illegal activity (e.g., fighting, public urination) after drinking.[198] New Jersey law recognizes both dramshop liability and social host liability, wherein the server of alcohol to visibly intoxicated persons or minors, is liable if that person then causes death or injury to a third-party in an alcohol-related automobile collision or other accident.[199] In order to mitigate liability, the Division of Alcoholic Beverage Control (ABC) grants licensed establishments the right to exclude any patron for any reason, but warns business against violating civil rights laws.[200]

While the courts in New Jersey allow the cause of actions based on dramshop liability or social host liability, the court will instruct a jury to consider the intoxicated person's negligence under the doctrine of comparative negligence.[201] Licensed establishments and social hosts may be liable for drunk driving accidents, assaults, falls, and other injuries and property damage caused by a customer, but are not liable for behavior which is unforeseeable (e.g., falling out of a tree),[202] nor are they liable if they only served food or non-alcoholic beverages to a drunk patron.[203][204] Dram shop and social host lawsuits may involve both compensatory and punitive damages.[205][206]

Social hosts are given more liability protection than licensed businesses in that a private person is generally only liable for the actions of guests over the age of 21 if their blood alcohol content is above 0.15, and the lawsuit involves drunk driving injuries.[207][208] As long as a guest is not underage, a social host has no liability for assaults, falls, and other non-DUI injuries.[206] Although most alcohol-related lawsuits involve parties injured by drunk drivers, there have been cases in New Jersey where drunk drivers were able to successfully sue the establishment that served them.[209] Recently, in Voss v. Tranquillino the New Jersey courts held that a drunk driver can sue a bar or restaurant under the "Dram Shop Act" and prevail under the theory that:

"[a] person who sustains personal injury or property damage as a result of the negligent service of alcoholic beverages by a licensed alcoholic beverage server may recover damages from a licensed alcoholic beverage server if the server was negligent (i.e. served a visibly intoxicated person), the injury was proximately caused by the negligent service of alcoholic beverages, and the injury was a foreseeable consequence of the negligent service."[165]

The Stone Pony is a famous nightclub in Asbury Park that filed for bankruptcy in 1991 because of a series of drunk driving lawsuits.

In 1959, the New Jersey Supreme Court permitted a lawsuit against several taverns that had served alcohol to an underage person, who then caused a fatal automobile accident. The court stated that its decision was based on the fact that this conduct was already illegal under ABC regulations, stating that, "We are convinced that recognition of the plaintiff's claim will afford a fairer measure of justice to innocent third parties whose injuries are brought about by the unlawful and negligent sale of alcoholic beverages to minors and intoxicated persons."[210] New Jersey courts have expanded the dram shop doctrine to include social hosts who serve alcoholic beverages to guests, and automobile owners who allow drunk drivers to operate their cars.[211][212]

Because of complaints from bar owners about their inability to obtain liability insurance, the state passed legislation in 1987 to limit liability to cases where the server could have realistically known that the patron was underage or intoxicated, and to limit lawsuits to types of injuries that are foreseeable. The act also instituted the legal standard of comparative negligence in these cases, wherein the monetary damages against a licensed establishment can be reduced if there are other individuals who are also negligent (e.g., the patron, other bars).[202][213] Additional legislation passed in 1987 substantially limited the liability of social hosts for adult guests.[208]

Intoxication defense, diversion, and treatment

New Jersey's criminal code prohibits voluntary intoxication from being used directly as a defense to a crime.[214] However, if a crime requires that the conduct was committed intentionally, intoxication may prevent the person from having the necessary mens rea to be guilty of the crime.[215] For example, a person who stands accused of killing a person during a fight while drunk may not guilty of murder because New Jersey law requires that the actor purposely or knowingly "causes death or serious bodily injury resulting in death."[216] However, in such a case, an accused killer could be found guilty of manslaughter because manslaughter only requires reckless conduct, which includes crimes committed while intoxicated.[217][218]

Involuntary and pathological intoxication are affirmative defenses to all criminal offenses in New Jersey,[214] but are not defenses to regulatory law and traffic law offenses that are considered strict liability violations (e.g., environmental regulations, DUI).[157] Involuntary intoxication relates to cases where the individual did not know that they had consumed alcohol (e.g., a spiked drink). Pathological intoxication is applicable where for medical reasons, a person had an extremely exaggerated response to alcohol.[219] To be used as a defense, the person being charged must show that "at the time of his conduct did not know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong."[214] Contracts made with an intoxicated individual may be voided by courts if "the defendant was so intoxicated" that he or she "could not realize and appreciate the nature and consequences of what defendant was doing."[220]

In 1976, the New Jersey legislature passed the Alcoholism Treatment and Rehabilitation Act (ATRA), which declared that the public policy of New Jersey was that "alcoholics and intoxicated persons may not be subjected to criminal prosecution because of their consumption of alcoholic beverages, but rather should be afforded a continuum of treatment in order that they may lead normal lives as productive members of society."[221][222] Since the implementation of ATRA, it's been the general policy of New Jersey to treat alcoholism as a disease.[186] Under ATRA, an intoxicated person arrested for a non-indictable criminal offense may be taken to a medical facility, instead of jail, and will be released as soon as they are sober, or at most 48 hours.[223]

Likewise a person charged with a non-indictable criminal offense, including those being adjudicated in juvenile court,[224] may request alcohol treatment in lieu of criminal prosecution.[225] If a physician attests that the defendant is an alcoholic, the court may impose inpatient treatment for up to 30 days, outpatient treatment for up to 60 days, or both. If the person successfully completes the treatment program, the criminal charges will be dismissed.[223] A person with alcohol dependency who has been charged with an indictable crime may apply for "special probation" (also known as drug court).[226][227] Individuals charged with severe violent crimes (e.g., murder, kidnapping) are not eligible,[227] but individuals charged with offenses with mandatory sentences,[226] or who have extensive non-violent criminal records may be eligible.[228] If admitted to special probation, the defendant will be subject to 18 months to 5 years of intense probation and residential treatment as an alternative to prison.[227]

An employer who terminates an employee for being an alcoholic is in violation of the state's anti-discrimination laws unless they can show that person's condition affected their job performance or created a substantial safety risk.[229][230] No general hospitals may refuse a patient treatment for intoxication or alcoholism,[231] and all individual and group health insurance plans which are regulated by the state of New Jersey are required to offer both inpatient and outpatient treatment for alcoholism.[232][233] Under federal law, all group health insurances plans for private companies with more than 50 employees must offer insurance coverage for alcoholism that is equal to their insurance coverage for other medical conditions.[234]

Areas outside state ABC jurisdiction

Casinos

In 1976, New Jersey voters approved a referendum legalizing casino gambling in Atlantic City.[235] Because of concerns about organized crime's traditional connection to gambling,[236] New Jersey enacted a strict system of regulations that included licensing of all casino employees and contractors, and a separation of powers between the Division of Gaming Enforcement (DGE) and the Casino Control Commission (CCC).[237][238] The Division of Gaming Enforcement is part of the Department of Law and Public Safety, and is responsible for investigating individuals and companies that apply for casino licenses, monitoring casino operations, and enforcing New Jersey's casino laws and regulations as defined in Title 5, Chapter 12 of New Jersey's statutes,[239][240] and Title 13, Chapter 69I of New Jersey's Administrative Code.[27] The Casino Control Commission is an independent agency in the state Treasury Department with both quasi-legislative and quasi-judicial powers, and is responsible for creating casino regulations, hearing appeals of DGE penalties, and make decisions on casino licensing.[241] In light of such regulation and the uniqueness of casino gambling, New Jersey's twelve casinos are not under the jurisdiction of the Division of Alcoholic Beverage Control (ABC) or Atlantic City's alcoholic beverage control board.[26][242]

Each casino and any vendors serving, selling or storing alcoholic beverages for a casino is required to obtain a casino hotel alcoholic beverage (CHAB) license from the Division of Gaming Enforcement.[243] CHAB licenses must be renewed every five years.[244] New Jersey's casino alcohol regulations are divided into five different regions of activity - (a) the casino floor (includes simulcasting facilities); (b) the hotel (includes restaurants and meeting rooms); (c) package goods; (d) room service; and (e) storage.[245] Alcohol sold or given away on the casino floor and in hotel areas must be in an open container for immediate consumption, whereas alcohol sold in a package goods area must be sealed. Alcoholic beverages brought to a patron as a room service may be open or closed, whereas storage area must not be accessible to the public.[246]

Although casinos are not under the jurisdiction of the ABC, many of the regulations for casinos and casino vendors are similar to those for ABC class C retailer licensees. Casinos may generally only purchase alcoholic beverages from licensed wholesalers (i.e., ABC Class B licensees).[247] A casino may have a brewpub on site, but production is limited to 3000 barrels of beer per year, and the beer may only be distributed in open containers on casino floor and in hotel areas of the casino.[248] Casinos may obtain a permit to have tastings, and tasting dinners.[249] Non-profit organizations may obtain a permit to have a social event at a casino where they charge for alcoholic beverages. Organizations are limited to 12 casino social event permits per year, and a given casino may only host 25 such events per year.[250]

Casinos are not allowed to serve alcohol to people under 21 years old or who are intoxicated,[251] are strictly liable for patron's behavior,[252] and are subject to dram shop lawsuits for injuries stemming from negligence in serving alcohol.[253][254] Casinos may give away free drinks, and it is very common in New Jersey's casinos for gamblers to be given complimentary alcoholic beverages.[255][256] However, except on New Year's Eve, a casino cannot sell an unlimited amount of alcoholic beverages at a set price, nor may they require patrons to purchase alcoholic beverages in order to access an event or service.[257] In 1983, because of difficulties in preventing underage drinking in casinos, the legal age to gamble at a casino was raised to 21.[258][259] In Hakimoglu v. Trump Taj Mahal Associates, a federal appeals court decided that casinos are not legally responsible for gambling losses and debts incurred by intoxicated gamblers, but it is not clear if the decision applies if an underage gambler is served alcohol.[260]

Because they serve alcoholic beverages, casino nightclubs are prohibited from offering full nudity. However, in 2011, the Taj Mahal casino was granted permission to open a strip club featuring scantily clad dancers.[261] New Jersey's casinos initially had closing times like most ABC-licensed establishments, but starting in 1992 were allowed to stay open 24 hours per day, 7 days per week.[262][263] It is legal for a minor to go to a casino, insofar as they do not gamble, consume alcoholic beverages in public areas of the casino, or remain on the gambling floor.[264] Because Atlantic City has municipal ordinance prohibiting underage drinking on private property, it is illegal for a person underage 21 years old to drink in a casino hotel room unless a family member is present.[265]

Federal lands

Sandy Hook is one of the only places in New Jersey where alcohol may be consumed on a beach without a permit.

The applicability of state and municipal alcohol laws on federal lands is a complex and partially unresolved legal issue that depends on whether the federal property is considered a federal enclave, what rights the state reserved when it granted the property to the federal government, and whether the law is criminal or civil. If the federal property is not an enclave, the federal government either has concurrent jurisdiction (i.e., shared authority with the state) or proprietary jurisdiction (i.e., only the rights of a landowner), and the state can enforce alcohol laws.[266]

If the federal property is an enclave, then the federal government has exclusive jurisdiction, unless the state reserved rights when it ceded the land to the federal government.[266] The Assimilative Crimes Act makes it a federal crime to violate a state law while at a federal enclave in that state. However, the Assimilative Crimes Act only applies to criminal laws (i.e., not regulatory laws), and is not applicable if the conduct is already regulated by federal law.[267] Under federal law, military facilities are required to adopt state traffic laws, but the base commander is permitted to institute additional traffic laws.[268]

In New Jersey, older Department of Defense and Department of Interior properties such as Fort Dix and parts of Sandy Hook are federal enclaves, but most other federal properties are not enclaves.[269][270] Because New Jersey generally did not reserve any right to regulate federal enclaves, state liquor licensing rules and alcohol taxes cannot be enforced.[271] There is no universal policy regarding the sale of alcoholic beverages on federal lands, but almost all military bases, and some national parks allow for alcohol concessions, both for on-premises or off-premises consumption.[272]

Unlike the state, federal agencies which allow alcohol sales do not have a system of liquor licenses or alcoholic beverage control boards, but instead simply award contracts to business per federal procurement laws.[273][274] New Jersey does not consider municipal ordinances to be criminal offenses, and so open container laws cannot be enforced in federal enclaves under the Assimilative Crimes Act.[114] Public consumption of alcohol is allowed on federal lands, except when in an automobile,[275] or when the park superintendent has prohibited open containers in an area.[276] For example, it is legal to consume alcoholic beverages on the beach at Sandy Hook.[277]

Because DUI in New Jersey is a non-criminal traffic violation, state DUI laws are not subject to the Assimilative Crimes Act.[278] However, members of the Armed Forces can be court martialed for drunk driving,[279] military bases can enforce New Jersey traffic law on civilians,[268] and it is a misdemeanor under federal law to drive while intoxicated on land administered by the National Park Service, the Department of Veterans Affairs, or the Postal Service.[280][281] Federal DUI law differs from New Jersey law in that that there are no mandatory minimum jail sentences, irrespective of the number of previous DUI convictions,[281] and plea bargaining is allowed.[282] However, a federal DUI conviction will result in unexpungeable criminal record.[283] Federal courts cannot suspend a driver's license,[281][284] but may notify the New Jersey Motor Vehicle Commission of a DUI conviction.[285] In federal enclaves that are under the jurisdiction of other federal departments (e.g., Fish and Wildlife Service), it is unclear if drunk driving could be prosecuted since the Assimilative Crimes Act is inapplicable, and there is no federal law defining DUI on those properties.[281][283]

Under federal law, the drinking age for the Armed Forces is the same as the state or nation where the military base is located, or the drinking age of a state or nation within 50 miles of the base.[286] Effectively, that restricts the purchase of alcohol at New Jersey military bases to individuals over the age of 21. Irrespective of state laws on underage consumption of alcohol, the Army, Navy, Air Force, and Coast Guard prohibit the consumption of alcohol by individuals under the age of 21 when stationed in the United States. However, the Marines allow individuals under 21 years old to consume alcohol at U.S. bases on special occasions.[287]

Federal law states that national parks will have the same underage laws as the state that they are located in, and the Assimilative Crimes Act is applicable to New Jersey's underage drinking statute.[288][289] Thus, in a private location (e.g., a cabin) in a federal enclave in New Jersey, a parent can serve alcohol to their child, and an underage person can possess and consume alcohol. Excluding these exceptions, underage drinking and serving alcohol to a minor are federal misdemeanors, punishable by a fine and up to 6 months in jail.[290] There is a 5-year statute of limitations for DUI, underage drinking, and other alcohol violations that take place in federal enclaves.[291]

See also

References

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  120. ^ N.J. P.L.1888, p.253.
  121. ^ N.J. P.L.1908, p.376.
  122. ^ U.S. Constitution, Amendment XVIII, Section 1.
  123. ^ N.J. P.L.1912, c.338, superceded by 18th Amendment to U.S. Constitution
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  137. ^ a b N.J. P.L.1983, c.574.
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  148. ^ State v. Machuzak, 227 N.J. Super. 279 (1988).
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  150. ^ N.J.S.A. 39:4-50.2.
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  152. ^ a b State v. Marquez, 202 N.J. 485 (2010).
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  156. ^ State v. Fogarty, 128 N.J. 59 (1992).
  157. ^ a b State v. Hammond, 118 N.J. 306 (1990).
  158. ^ State v. Romano, 355 N.J. Super. 21 (2002).
  159. ^ Insurance Institute for Highway Safety - Highway Loss Data Institute. DUI/DWI laws (January 2013). Retrieved 29 January 2013.
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  161. ^ New Jersey Judiciary. "Frequently Asked Questions." (What Is the Alcohol Treatment Rehabilitation Act (ATRA)?). Retrieved 10 February 2013.
  162. ^ State v. McKeon, 897 A.2d 1127 (2006).
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  164. ^ N.J.S.A. 39:6A-4.5(b).
  165. ^ a b Voss v. Tranquilino, 413 N.J. Super. 82 (2010), (quoting N.J.S.A. 2A:22A-5(a)), affirmed by 206 N.J. 92 (2011). The court acknowledged that a convicted drunk driver is legally barred from having a "cause of action for recovery of economic or noneconomic loss sustained as a result of the accident" per N.J.S.A. 39:6A-4.5(b). However, the court upheld the right of the drunk driver to sue in this case because there was no evidence that by enacting N.J.S.A. 39:6A-4.5(b), "the Legislature repealed by implication significant portions of the previously enacted Dram Shop Act."
  166. ^ a b State v. Hamm, 121 N.J. 109 (1990).
  167. ^ N.J. P.L.1909, c.127.
  168. ^ N.J. P.L.1921, c.208.
  169. ^ N.J. P.L.1926, c.152.
  170. ^ a b State v. Chun, 194 N.J. 54 (2008).
  171. ^ N.J. P.L. 1951, c.23.
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  173. ^ N.J. P.L. 1966, c.142.
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