Boro faces opposition with BYOB restrictions
All-nude club's attorney says action directed solely at biz
BY MICHAEL ACKER Staff Writer
Sayreville officials will vote on a law next month that would prohibit customers from bringing alcohol to businesses that do not have liquor licenses.

The law, however, would not prohibit restaurants from allowing patrons to bring their own alcohol, known as BYOB.

As proposed, the ordinance would affect places such as Club 35, an all-nude nightclub on Routes 9 and 35 that allow customers to bring their own alcohol. Attorney Gregory Vella, who represents the club, voiced opposition to the proposal and said it would have a detrimental impact on his client's business.

"After reviewing the ordinance, we believe this is unconstitutional, discriminatory and an abuse of police powers that they're drafting an ordinance directed at one entity in the borough of Sayreville, obviously Club 35," Vella said. "'This is an abuse of police powers and we hope that the borough does not adopt this ordinance. If they do adopt it, we will take the appropriate legal action, but this ordinance is strictly directed at one business ... with no rational basis for it."

The Borough Council voted 4-0 to introduce the ordinance, with Republican council members David Kaiserman and Paula Siarkiewicz absent, at its June 15 meeting.

Councilwoman Lisa Eicher, who chairs the Public Safety Committee, said the ordinance has been discussed with Borough Business Administrator Jeffry Bertrand and Police Chief Edward Szkodny. She noted that the ordinance was drafted in part to provide guidelines to restaurants with a BYOB policy. This would deter patrons from abusing the right to consume alcohol on the premises.

"The chief wanted it restricted to restaurants," Eicher said. "He did most of the research on this … I do think it's a very good idea."

Eicher cited Cagney's Pub on Washington Road as a venue that this ordinance would affect since it is a business that is no longer able to serve alcohol due to recent disciplinary action that resulted from state Division of Alcoholic Beverage Control violations. Bertrand said the owner has reportedly been operating Cagney's as a BYOB establishment since the liquor license was pocketed, and code enforcement officials cited the bar for operating without a business license.

This ordinance was not drafted to target any specific businesses in town, Bertrand said. Officials learned from recent experience about so-called loopholes that former liquor license holders have used to operate businesses where patrons consume alcohol, he said.

"I can tell you under no terms did the borough look to develop an ordinance that targets any one or any group of businesses," Bertrand said. "The borough has, however, had problems in the past or has seen a phenomena in the past that businesses that have had issues with properly operating an establishment with a liquor license, once they run into problems with properly utilizing a license, they have turned to either giving up the license or pocketing the license and running a BYOB establishment. The borough attorney has advised us that state law provides for rules for BYOB establishments and provides for the borough to make certain rules."

Bertrand noted that one of the rules in the ordinance is that a BYOB establishment cannot advertise itself as being a place where patrons can bring alcohol, nor can it charge a fee for entry. He said the borough has cited Club 35 for violating that law.

"Charging a cover charge is a violation of state law," Bertrand said.

Establishing these rules eliminates legal gray areas that are vague and could lead to litigation, Bertrand said. This is a quality-of-life issue, he said, citing the now-defunct Krome nightclub where a shooting death occurred in 2004 as another example of a business that changed its format and ultimately had to be shut down.

"It's not about the Colosseum [where Club 35 now operates]; it's about us being educated, because this is the third entity making a move similar to this," Bertrand said. "All we're saying is this is not the intent of the BYOB law."

The municipality attempted to shut down Club 35, which is also known as XXXV Gentleman's Club, after police cited the business as violating local zoning laws. Officials said the club was operating within 1,000 feet of public parks and homes last year. The juice bar is located near Lower Oak Street Park, a residentially zoned area near a school bus stop. The club's owner faces similar charges in a criminal case from the Middlesex County Prosecutor's Office.

The nightclub changed its format to become a strip club and renamed itself after police issued complaints against the club in 2007 related to several incidents of violence at the venue. Vella said there have not been any violent incidents at the club since it started permitting patrons to bring their own alcoholic beverages.

Vella said he is going to submit a brief to an appeals court next month, and the borough will submit its brief in August. A three-judge panel will then schedule oral arguments and render a decision on whether the borough can shut down the business.

Borough Attorney Judy Verrone said at the most recent council meeting that Szkodny has issued several recommendations, one being that restaurants can only allow patrons to consume alcohol between 11 a.m. to 11:30 p.m. A patron is also only permitted to bring enough alcohol for three people to consume at the restaurant, according to the language of the ordinance, in order to ensure that those patrons are at the business to dine and not to get inebriated.

Bertrand said the proposed ordinance is modeled after one enacted in Wall Township.

Mayor Kennedy O'Brien said officials want to make sure that patrons do not bring excessive amounts of alcohol into BYOB establishments, and also to prevent businesses from circumventing state ABC regulations.

"It's not meant to attack anybody," O'Brien said. "The intent of BYOB is the intent of allowing people to bring a bottle of wine or a bottle of beer to enjoy their meal at restaurants that don't have liquor licenses. That's the intent. What the ordinance is for is so that intent is not circumvented."

The council is scheduled to vote on adopting the ordinance at its July 13 meeting. Vella said he plans to address the council and voice his concerns at that meeting. He said that if BYOB was a problem in town, it should have been prohibited at all establishments without exception. He said that his client's business is being targeted due to the adult-oriented nature of the business.

"The state law permits us to operate under BYOB," Vella said. "[The council is] directing their police powers to make our operation illegal. It's discriminatory."

Vella said the borough's ordinance prohibiting BYOB at all non-liquor license holding establishments except for restaurants is an attempt to circumvent the courts.

"This is another attempt to go after a legal operation and get around the Appellate Division's decision to stay the [Superior Court] decision," Vella said. "They simply are creating more litigation and burdening the taxpayers with more and more legal fees."