GJJM ENTERPRISES, LLC v. CITY OF ATLANTIC CITY
1:17-cv-02492
D.N.J.Dec 21, 2017Background
- GJJM Enterprises d/b/a Stiletto (a nightclub/restaurant in Atlantic City) permits patrons to bring beer and wine (BYOB) but has not advertised that practice out of fear of prosecution under N.J. Stat. § 2C:33-27(a)(2).
- Section 2C:33-27: permits patrons to consume wine/malt beverages at unlicensed premises but prohibits the proprietor from advertising that patrons may bring and consume their own wine or malt alcoholic beverages; violation is a disorderly-person offense and may trigger injunctive sanctions.
- GJJM sued under 42 U.S.C. § 1983 seeking declaratory and injunctive relief, moved for a preliminary injunction to enjoin enforcement of the advertising ban, and challenged the statute as a First Amendment violation.
- The City of Atlantic City defendants moved to dismiss; the court granted dismissal of the City and its police department for failure to plead Monell municipal-policy liability. The State ABC and its director remained as defendants.
- The court found the BYOB advertising ban to be a content-based restriction on speech, subject to strict scrutiny (and also failing Central Hudson intermediate scrutiny if treated as commercial speech), and granted GJJM’s preliminary injunction enjoining state enforcement pending adjudication on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of BYOB-advertising ban under the First Amendment | Statute forbids truthful, nonmisleading commercial speech about lawful activity; content-based and unconstitutional | State asserts interest under the Twenty-first Amendment in regulating alcohol to promote temperance and public health; regulation permissible | Court: Statute is content-based; fails strict scrutiny and, if analyzed as commercial speech, fails Central Hudson; likely unconstitutional |
| Scope of defendants enforceability (NJABC v. local police/City) | State actors (NJABC and Director) can be defendants for injunctive relief; ABC guidance implicated | State/NJABC argued local police enforce BYOB statute and ABC has no enforcement role | Court: Did not dismiss NJABC/Rible at this stage; left them as proper defendants; dismissed City and police defendants for lack of Monell allegations |
| Preliminary injunction — irreparable harm and likelihood of success | GJJM shows chilling effect on speech, ongoing constitutional injury, and reasonable probability of success on the merits | Defendants note long-standing statute and GJJM’s delay since incorporation in 2009 | Court: Loss of First Amendment freedoms is irreparable; balance of harms and public interest favor injunction; preliminary injunction granted |
| Municipal liability (Monell) | GJJM alleged city caused enforcement/chill | City argued no policy/custom pleaded; enforcement is at state/local law enforcement discretion | Court: Dismissed City and police department—no specific policy or municipal action alleged to create Monell liability |
Key Cases Cited
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content-based speech restrictions subject to strict scrutiny)
- Sorrell v. IMS Health, 564 U.S. 552 (2011) (heightened scrutiny for certain speaker- or content-based regulations of commercial speech)
- 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (struck down a ban on truthful price advertising for alcohol; rigorous review of total bans on commercial speech)
- Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557 (1980) (four-part test for regulation of commercial speech)
- Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (commercial-speech restriction must directly advance asserted government interest and be narrowly tailored)
- Monell v. Department of Social Servs., 436 U.S. 658 (1978) (municipal liability under § 1983 requires an official policy or custom)
- Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989) (States and state officials sued in their official capacities are not "persons" under § 1983 for damages; injunctive relief still available)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (standard for issuing a preliminary injunction requires likely irreparable harm)
- Elrod v. Burns, 427 U.S. 347 (1976) (loss of First Amendment freedoms constitutes irreparable injury)
- Dombrowski v. Pfister, 380 U.S. 479 (1965) (chilling effect on speech supports equitable relief)