Point Beach has 10 business days to respond to an appeal filed by boardwalk businesses asking the state to kill a new law that prohibits bars from serving alcohol past midnight, according to a state official.
The town also has 10 business days to respond to Jenkinson's and Martell's request that the state Division of Alcoholic Beverage Control (ABC) "stay" or block local enforcement of the new ordinance until ABC decides on the appeal, said Zach Hosseini, an ABC spokesman.
"We'll make a decision shortly after that (on the 'stay'), we're not going to let this drag out," Hosseini said. The ordinance is scheduled to go into effect on July 1.
Hosseini said attorneys at ABC are reading the appeal, along with a voluminous file of approximately 300 pages, including case law cited in the appeal, but are not commenting on its merits at this time. He said he did not know if ABC would schedule a hearing, or what the next step would be, after responses from the town are reviewed.
The state should kill the new ordinance because it was adopted to "extort" money from boardwalk bars and will badly hurt their businesses, according to the appeal filed by Jason Mandia, an attorney with Stone Mandia, Neptune, on behalf of Jenkinson's Boardwalk and Martell's. The appeal was received by state and local officials on Wednesday.
The appeal (see attached PDF) acknowledges that municipalities have the right to regulate the hours of operation of businesses with liquor licenses, but insists that ABC should repeal Point Beach's effort to do just that because that effort is being made only to get money out of the boardwalk businesses.
The ordinance is scheduled for adoption at Tuesday's meeting.
"The council's own comments illustrate that the ordinance was seen as nothing more than a tool to coerce boardwalk businesses to reach a financial settlement with the Borough," the appeal states. "Such a purpose is not a legitimate reason for enactment of limitations on hours of operation.
"....the action of the mayor and council must be reversed and the ordinance repealed as it is not supported by the record, it's unreasonable and it was enacted in bad faith," says the appeal.
In asking the state to "stay" enforcement of the ordinance, the appeal says that enforcement "will require firing" an unspecified number of boardwalk bar employees "at a very difficult economic time for all."
The appeal makes no mention of the fact that owners and attorneys for Jenkinson's and Martell's had repeatedly met with elected municipal officials and attorneys to try to hammer out just such "a financial settlement," which, in fact, resulted in the two businesses offering to pay $800,000 over a five-year period to help pay for police services.
Last summer's weekends had the highest rate of crime, disorderly persons' offenses and criminal mischief, according to police.
Ultimately, the mayor and council did not vote to accept the offer, with some of them saying it lacked a mechanism to make sure it was paid each year, as well as other details that still needed to be worked out.
The appeal also does not mention that in the written offer of $800,000, Ronald Gasiorowski, an attorney for the two boardwalk businesses, writes in a May 9 letter to the town (see attached PDF) that if the town passes the ordinance to stop serving alcohol at midnight, the two businesses will pay the fees, as stipulated by the pending ordinance, to stay open until 2 a.m., which is the current closing time.
Making that statement and then later telling the state that the town was wrong to try to negotiate fees and also wrong to consider an ordinance offering an option to pay fees to serve alcohol until 2 a.m. is "inconsistent," said Mayor Vincent Barrella on Thursday afternoon.
"I think ABC should dismiss this," Barrella said. "I don't know how they (ABC) would get around saying that regulating bars' hours of operation is within the jurisdiction of the municipality.
"We could have done nothing or we could have just closed the bars at midnight and not offered an option to pay a fee," Barrella said. "So, because we offered something else as a compromise, that becomes the basis to deny us the right to do what we have a right to do? That's right out of Alice in Wonderland!"
Marilou Halvorsen, Jenkinson's Director of Marketing, said she had not yet seen the appeal, referred questions to Ed McGlynn, an attorney for Jenkinson's, and said she would ask him to call Patch.
Mandia did not return a phone call on Thursday.
Municipal Attorney Sean Gertner said he cannot yet comment on the appeal, but that he will prepare responses in the time allotted by the state.
The issue of bar closings and potential fees that may go along with it has generated a lot of controversy outside of Point Beach, as well as among its full-time residents of approximately 5,000.
For example, some of the boardwalk employees do not live in Point Beach and are concerned about losing their jobs or making less money in wages or tips.
Also, Point Borough Mayor William Schroeder has said he is concerned about bars closing at midnight because of the potential for bar patrons to rush into Point Borough while bars there are still open.
He said he feels Point Borough police can handle drunken driving problems through enforcement.
"What I'm more concerned about is a bunch of people leaving a bar in the Beach at midnight, getting in a few cars and driving into the Borough to get to a bar, maybe without paying enough attention to how they're driving," Schroeder said. "I'm concerned about them being careless, passing in the wrong spot or turning in the wrong spot."
"I would hope this can be worked out between the town and the boardwalk," Schroeder said. "It just can't be that hard."
Patch will update this story if more information becomes available.