BYOB Initiative in Ocean City: What's Next?

With a petition calling for a public vote on allowing BYOB restaurants in Ocean City now submitted, city officials and residents are all wondering what exactly happens next.

City Solicitor Dorothy McCrosson distributed a memo to City Council members this week outlining her research into the initiative process.

A committee of petitioners has submitted a petition with 583 signatures to the City Clerk's Office. The petition proposes a new city ordinance (click on PDF icon at right to read the proposed ordinance) that would permit "bring your own bottle," or BYOB, restaurants in Ocean City, which has prohibited the sale and public consumption of alcohol through laws and deed restrictions since its founding in the 1800s.

The issue has sparked a debate in the city -- with many people passionate about preserving the status quo in a popular family resort and many who see BYOB as a way to add to Ocean City's appeal as a year-round shopping and dining destination.

The memo outlines the following process:

• The City Clerk's Office has until Aug. 24 to verify that the petition is signed by a sufficient number of qualified voters.
• Because the petition potentially includes a number of signatures of registered Ocean City voters greater than 10 percent of the votes cast in the last General Assembly election (4,976), the public vote can be included on the ballot for the next regularly scheduled general or municipal election (in this case, the Nov. 8 general election).
• Because the signatures are less than 15 percent (of 4,976), no special election is required.
• If the city clerk finds the petition to be deficient, the committee of petitioners will have 10 days to file an amended petition (and the clerk will have another five days to examine it).
• If the city clerk finds the petition to be sufficient, it will be submitted to City Council at the next regularly scheduled meeting (Thursday, Aug. 25, in this case).
• City Council can then vote on the ordinance.
• If council votes to approve it, BYOB would become law in Ocean City. The vote would be considered a second reading of the ordinance (with the public petition being the first).
• If council votes not to approve the ordinance, the city clerk would then submit the question to the county clerk by a Sept. 2 deadline for inclusion on the ballot in the Nov. 8 election.
• If council takes no action on the ordinance, the petitioners would have to wait 20 days (council's allotted period to take action) before the question could be submitted to the county clerk. In this case, a council decision to take no action would likely cause the petitioners to miss the Sept. 2 deadline.

In January, City Council unanimously passed a resolution expressing opposition to allowing BYOB in Ocean City. But City Council President Michael Allegretto said Friday he does not foresee an attempt by council to purposely cause the petitioners to miss the deadline by taking no action.

"That wouldn't be fair to the people who signed the petition," Allegretto said.

McCrosson said Friday that she has consulted with Jeff Sutherland, the attorney representing the BYOB petitioners, to share their interpretations of the laws governing the process.

Sutherland could not be reached for comment on Friday or Saturday.

COURT DECISION ON BYOB

McCrosson also distributed to council members this week information on an appeals court decision related to a BYOB case in Sayreville, NJ.

Sayreville passed a local ordinance that allowed restaurants but not a strip club to permit BYOB.

A lower court upheld the city's ordinance, but the Appellate Division reversed that decision on June 13, 2011. The decision said the state statute on BYOB pre-empts any local ordinance, according to McCrosson's memo

The state statute outlines fairly simple rules for places where food and drink are sold or served to the public:

• Can allow only consumption of wine or a malt alcoholic beverage
• Can't charge a corking fee or cover charge
• Can't allow BYOB where prohibited by state or municipal law
• Owners can choose not to allow BYOB

Because the proposed ordinance for Ocean City regulates BYOB in a different way than the state statute does, it could potentially be "subject to attack under the preemption statute," according to McCrosson.