Point Beach bars can stay open until 2 a.m. for now until an appeal is decided, ruled the director of the state Division of Alcoholic Beverage Control on Friday night.
The town is temporarily barred from enforcing an ordinance, now that ABC Director Michael Halfacre has granted a "stay." (See attached PDF).
Halfacre wrote in his ruling that compelling Jenkinson's and Martell's to close at midnight while the appeal they filed against the ordinance is pending, would be unfair.
"Should the Appellants prevail after a full hearing, there is no method of redress for them to recoup the financial losses they would incur while the earlier closing time was in effect," Halfacre wrote.
"Acts destroying a complainant’s business, custom and profits do an irreparable injury and authorize the issuance of a preliminary injunction," he wrote, citing case law.
By granting the stay, Halfacre is giving Jenkinson's and Martell's one of two things they asked for in appealing the bar ordinance. The second thing they want is for the state to invalidate the ordinance.
In a statement to the media, released with his ruling, Halfacre states: "The Division of Alcoholic Beverage Control (ABC) has today issued a stay on the hours ordinance 2012-15, temporarily preserving the closing time status quo of 2 a.m. for ABC licensed establishments in Point Pleasant Beach.
"The Division has also been asked to rule on the legality of the ordinance and legal proceedings on this matter will begin in due course. The stay will remain effective until those proceedings have been completed."
The boardwalk businesses, in their appeal, allege that the ordinance was used as a tool to "extort" money from them since the town had seriously considered adopting a second ordinance giving bars the option to pay a fee to stay open later.
The fee would be to pay for extra police services, which were needed last year, when emergency appropriations of $155,000 were paid for police overtime, and this year when more special police officers were hired for summer duty.
Halfacre, in his ruling released Friday, says that even though the town never adopted the second ordinance to give bars the option to pay to stay open past midnight, the fact that they had strongly considered it raises a question about the legitimacy of adopting the first ordinance.
"...the substantial factual history dating back at least a year, including various public comments made by elected officials, combined with the surcharge ordinance in its various iterations, gives rise to a legitimate inquiry into the motivations behind an otherwise valid exercise of municipal authority," says Halfacre, adding that municipalities do have the right to limit hours of operations of bars.
He then makes it clear that he has the authority "to refuse to apply an ordinance if I determine that ordinance was entered into in bad faith or for an illegitimate purpose."
"Consequently, although the Governing Body has the authority to restrict hours of operation, the substantial factual history here raises at least the need for an inquiry into the allegations of bad faith or illegitimate purpose," Halfacre writes.
"Therefore, a hearing before the Office of Administrative Law is appropriate to make findings of fact upon which my ultimate decision will be based," he wrote.
Halfacre has the authority to either accept or reject a finding made by an administrative law judge.
Municipal officials and boardwalk representatives had negotiated to try to avert midnight closings.
Mayor Vincent Barrella's statement, in response to the decision, is as follows, in its entirety:
"The Borough was disappointed to learn this afternoon of ABC Director Halfacre’s decision to stay the implementation of Ordinance 2012-15, thereby subjecting the residents of Point Pleasant Beach to more of the riotous behavior and degradation of quality of life that the 12 am closing sought to quell.
"We are also surprised, that a former mayor would not seek to uphold an action that is to be accorded the presumption of validity based, we believe, on the theory that the Beach ought to simply provide for additional enforcement.
"While we have not had the opportunity to fully review the basis of his decision, mandating the stay of implementation of the ordinance usurps the traditional role of local government to the detriment of our local citizens. We remain confident that our determination will be upheld after full hearing and we will be reviewing our options."
Barrella's reference to a "former mayor" is a reference to Halfacre being a former mayor of Fair Haven in Monmouth County.
Marilou Halvorsen, Jenkinson's Director of Marketing, said, "We're pleased with the decision." She said she would not comment further until tomorrow after she and Jenkinson's owners and attorneys had a chance to review the decision.
The decision had been expected all day, but was not released to interested parties until sometime after 7 p.m. and not released to the media until nearly 7:30 p.m.
When Zach Hosseini, an ABC spokesman, when asked why it wasn't until the evening that Halfacre released the decision, he said he did not know. When asked if negotiations were going on between Halfacre and any interested parties, he said, "I don't believe so, not that I know of."
When asked if Halfacre would respond to Barrella's comment or other questions, Hosseini said, "No, I don't think that would be appropriate."
Halfacre's decision says that both parties had met with him on June 19 and were still communicating with each other this past week.
"Finally, a telephonic conference was held on June 27 for final comments from the parties, as there appeared to be some indication that this matter may be resolved by the parties. Efforts toward resolution, however, were unsuccessful," Halfacre writes.