GJJM ENTERPRISES, LLC v. CITY OF ATLANTIC CITY et al, No. 1:2017cv02492 - Document 40 (D.N.J. 2017)

Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 12/21/2017. (tf, )
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GJJM ENTERPRISES, LLC v. CITY OF ATLANTIC CITY et al Doc. 40 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY GJ J M ENTERPRISES, LLC, d/ b/ a STILETTO, : : Plaintiff, v. Hon. J oseph H. Rodriguez Civil Action No. 17-2492 : OPINION CITY OF ATLANTIC CITY, CITY OF : ATLANTIC CITY POLICE DEPARTMENT, HENRY WHITE, Chief, Atlantic City : Police Departm ent, CHRISTOPHER PORRINO, New J ersey Attorney General, : NEW J ERSEY DIVISION OF ALCOHOLIC BEVERAGECONTROL, DAVID P. RIBLE, : Director of New J ersey Division of Alcoholic Beverage Control, : Defendants. : In this lawsuit, Plaintiff GJ J M Enterprises, LLC d/ b/ a Stiletto (“GJ J M”) challenges the constitutionality of New J ersey’s ban on “BYOB” advertising and has sought declaratory and injunctive relief in asking this Court to declare N.J . Stat. Ann. § 2C:33-27(a)(2) violative of its First Am endm ent rights and to enjoin the government from enforcing the ban. This m atter is before the Court on (1) a m otion to dism iss the Com plaint filed by Defendants City of Atlantic City, City of Atlantic City Police Departm ent, and Henry White, Chief, Atlantic City Police Department (“Atlantic City Defendants”) [21]; (2) a m otion for prelim inary 1 Dockets.Justia.com injunction filed by GJ J M, [5] in Civil Action No. 17-6879, which has been consolidated under the above-captioned docket num ber; and (3) a crossm otion to dism iss the Com plaint by Defendants New J ersey Division of Alcoholic Beverage Control, Christopher Porrino, and David P. Rible (“State Defendants”), [5] in Civil Action No. 17-6879. The Court heard oral argum ent on the m otions on October 30 , 20 17; no testim ony was offered beyond affidavits and attached docum ents. After careful consideration, GJ J M’s m otion for a prelim inary injunction will be granted for the reasons and in the form explained below. The following constitutes the Court’s findings of fact and conclusions of law upon GJ J M’s m otion, pursuant to Federal Rule of Civil Procedure 52(a). Background GJ J M operates a nightlife destination called Stiletto (“the Club”) adjacent to the Atlantic City boardwalk. The Club features non-alcoholic beverages and live entertainment and frequently hosts tourists, convention groups, and bachelor parties. As a service to its custom ers, GJ J M perm its its clientele to bring their own beer and wine (“BYOB”) to consum e at the Club; it does not allow custom ers consum e liquor or m ixed drinks in the Club. (Affidavit of Phillip Griffo, ¶ 3.) GJ J M contends that the fear of prosecution under New J ersey’s ban on BYOB advertising has prevented it 2 from notifying its clients– either through radio, print, television, and online ads or by exterior or interior signage– that they are perm itted to bring their own beer or wine to the Club. Presently before the Court is a m otion for a prelim inary injunction enjoining the State Defendants 1 from taking any actions to enforce the statutory provisions that prohibit establishments from advertising that patrons may bring their own beverages to consum e on the prem ises. Also under consideration are cross-m otions by the Defendants to dism iss the Com plaint. New J ersey Law Section 2C:33-27 of the New J ersey Statutes governs the consum ption of alcohol at restaurants that do not have a license to sell alcoholic beverages. It provides, in pertinent part: a. No person who owns or operates a restaurant, dining room or other public place where food or liquid refreshments are sold or served to the general public, and for which prem ises a license or perm it authorizing the sale of alcoholic beverages for onprem ises consum ption has not been issued: (1) Shall allow the consum ption of alcoholic beverages, other than wine or a m alt alcoholic beverage, in a portion of the prem ises which is open to the public; or After hearing oral argum ent, the Court previously denied Plaintiff’s m otion for a prelim inary injunction against the Atlantic City Defendants, expressing concern that Plaintiff could not dem onstrate a likelihood of success on the m erits against them when dealing with a State-wide statute absent involvement of the State in the case. 1 3 (2) Shall charge any adm ission fee or cover, corkage or service charge or advertise inside or outside of such prem ises that patrons m ay bring and consume their own wine or m alt alcoholic beverages in a portion of the prem ises which is open to the public. (3) Shall allow the consum ption of wine or m alt alcoholic beverages at tim es or by persons to whom the service or consum ption or alcoholic beverages on licensed prem ises is prohibited by State or m unicipal law or regulation. * * * c. A person who violates any provision of this act is a disorderly person, and the court, in addition to the sentence im posed for the disorderly person violation, m ay by its judgment bar the owner or operator from allowing consum ption of wine or m alt alcoholic beverages in his prem ises as authorized by this act. N.J . Stat. Ann. § 2C:33-27. Thus, under the statute, patrons m ay bring their own beer and wine to the restaurant, but m ay not bring outside liquor. 2C:33-27(a)(1). The restaurant m ay not, however, advertise– either inside or outside the establishment– that patrons are perm itted to bring their own alcoholic beverages. 2C:33-27 (a)(2). As a result, restaurants are prohibited from notifying customers that their establishm ents are BYOB, even though it is lawful for patrons to bring and consume their beer or wine on the prem ises. Individuals who advertise that customers may BYOB to their restaurants face prosecution as disorderly persons. 2C:33-27(c). In addition, courts m ay also prohibit individuals who violate the advertising ban from perm itting the consum ption of BYOB beverages at their restaurants. Id. 4 Motion to Dism iss Federal Rule of Civil Procedure 12(b)(6) allows a party to m ove for dism issal of a claim based on “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A com plaint should be dism issed pursuant to Rule 12(b)(6) if the alleged facts, taken as true, fail to state a claim . Fed. R. Civ. P. 12(b)(6). When deciding a m otion to dism iss pursuant to Rule 12(b)(6), ordinarily only the allegations in the com plaint, m atters of public record, orders, and exhibits attached to the com plaint, are taken into consideration. 2 See Chester County Interm ediate Unit v. Pennsylvania Blue Shield, 896 F.2d 80 8, 812 (3d Cir. 1990 ). The question before the Court is not whether the plaintiff ultim ately will prevail. Watson v. Abington Twp., 478 F.3d 144, 150 (3d Cir. 20 0 7). Instead, the Court sim ply asks whether the plaintiff has articulated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twom bly, 550 U.S. 544, 570 (20 0 7). Although a district court m ay not consider m atters extraneous to the pleadings, a document integral to or explicitly relied upon in the com plaint m ay be considered without converting the m otion to dism iss into one for sum m ary judgment.” U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 20 0 2) (internal quotation m arks and citations om itted) (em phasis deleted). 2“ 5 “A claim has facial plausibility 3 when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (citing Twom bly, 550 U.S. at 556). “Where there are wellpleaded factual allegations, a court should assum e their veracity and then determ ine whether they plausibly give rise to an entitlem ent to relief.” Iqbal, 556 U.S. at 679. The Court need not accept “‘unsupported conclusions and unwarranted inferences,’” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 20 0 7) (citation om itted), however, and “[l]egal conclusions m ade in the guise of factual allegations . . . are given no presum ption of truthfulness.” Wyeth v. Ranbaxy Labs., Ltd., 448 F. Supp. 2d 60 7, 60 9 (D.N.J . 20 0 6) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Kanter v. Barella, 489 F.3d 170 , 177 (3d Cir. 20 0 7) (quoting Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 20 0 5) (“[A] court need not credit either ‘bald assertions’ or ‘legal conclusions’ in a com plaint when deciding a m otion to dism iss.”)). Accord Iqbal, 556 U.S. at 678-80 (finding that pleadings that This plausibility standard requires m ore than a m ere possibility that unlawful conduct has occurred. “When a com plaint pleads facts that are ‘m erely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlem ent to relief.’’” Twombly, 550 U.S. at 557. 3 6 are no m ore than conclusions are not entitled to the assum ption of truth). Further, although “detailed factual allegations” are not necessary, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlem ent to relief’ requires m ore than labels and conclusions, and a form ulaic recitation of a cause of action’s elem ents will not do.” Twom bly, 550 U.S. at 555 (internal citations om itted). See also Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action, supported by m ere conclusory statements, do not suffice.”). Thus, a m otion to dism iss should be granted unless the plaintiff’s factual allegations are “enough to raise a right to relief above the speculative level on the assum ption that all of the com plaint’s allegations are true (even if doubtful in fact).” Twom bly, 550 U.S. at 556 (internal citations om itted). “[W]here the well-pleaded facts do not perm it the court to infer m ore than the m ere possibility of m isconduct, the com plaint has alleged-but it has not ‘shown’-‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Nature of the Claim GJ J M’s Constitutional claim is governed by Title 42 U.S.C. § 1983, which provides a civil rem edy against any person who, under color of state law, deprives another of rights protected by the United States Constitution. 7 See Collins v. City of Harker Heights, 50 3 U.S. 115, 120 (1992). Any analysis of 42 U.S.C. § 1983 should begin with the language of the statute: Every person who, under color of any statute, ordinance, regulation, custom , or usage, of any State or Territory or the District of Colum bia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or im m unities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. See 42 U.S.C. § 1983. As the above language makes clear, Section 1983 is a remedial statute designed to redress deprivations of rights secured by the Constitution and its subordinate federal laws. See Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979). By its own words, therefore, Section 1983 “does not . . . create substantive rights.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 20 0 6) (citing Baker, 443 U.S. at 145, n.3). To state a cognizable claim under Section 1983, a plaintiff m ust allege a “deprivation of a constitutional right and that the constitutional deprivation was caused by a person acting under the color of state law.” Phillips v. County of Allegheny, 515 F.3d 224, 235 (3d Cir. 20 0 8) (citing Kneipp v. Tedder, 95 F.3d 1199, 120 4 (3d Cir. 1996)). Thus, a plaintiff m ust dem onstrate two essential elem ents to m aintain a claim under § 1983: (1) that the plaintiff was deprived of a “right or privileges secured by the 8 Constitution or the laws of the United States” and (2) that plaintiff was deprived of his rights by a person acting under the color of state law. William s v. Borough of West Chester, Pa., 891 F.2d 458, 464 (3d Cir. 1989). The First Am endment, applicable to the States through the Fourteenth Am endm ent, prohibits the enactm ent of laws “abridging the freedom of speech.” U.S. Const. Amend. I. As such, a governm ent, including a m unicipal governm ent vested with State authority, “has no power to restrict expression because of its m essage, its ideas, its subject m atter, or its content.” Police Dept. of Chicago v. Mosley, 40 8 U.S. 92, 95 (1972). “Content-based laws—those that target speech based on its com m unicative content—are presum ptively unconstitutional and m ay be justified only if the government proves that they are narrowly tailored to serve com pelling state interests.” Reed v. Town of Gilbert, Ariz., --- U.S. ---, 135 S. Ct. 2218, 2226 (20 15). The Eleventh Am endm ent to the Constitution guarantees the states im m unity from certain claim s: “The J udicial power of the United States shall not be construed to extend to any suit in law or equity, com menced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. Am end. XI. As such, the Eleventh Am endm ent has long been held to incorporate a m ore 9 general principle of sovereign imm unity that bars citizens from bringing suits for dam ages against any state in federal court. Pennhurst State Sch. & Hosp. v. Halderm an, 465 U.S. 89, 10 0 -0 1 (1984). Monetary claim s for deprivations of civil rights are subject to the sovereign imm unity bar, as the United States Suprem e Court has held that “neither a State nor its officials acting under their official capacities are ‘persons’ under § 1983.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). As such, an employee of the State named as a defendant in a civil rights action m ay be held liable for dam ages only if that person has personal involvement in the alleged wrongs and is sued in their personal capacity. See Hafer v. Melo, 50 2 U.S. 21, 31 (1991) (“state officials, sued in their individual capacities, are ‘persons’ within the m eaning of § 1983”). “Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the State.’” Will, 491 U.S. at 71 n.10 . A m unicipality is not liable under 42 U.S.C. § 1983 on a respondeat superior theory. Monell v. Department of Soc. Servs. of New York, 436 U.S. 658, 691 (1978). However, a governm ent entity m ay be liable for its agent’s actions upon a demonstration that a policy or custom of the m unicipality caused, or was a “moving force” behind, the alleged violation of a plaintiff’s 10 rights. Kentucky v. Graham, 473 U.S. 159, 166 (1985) (quoting Polk County v. Dodson, 454 U.S. 312, 326 (1981)); Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996). Thus, in order to prevail against the government entity, “[a] plaintiff m ust identify the challenged policy, attribute it to the city itself, and show a causal link between execution of the policy and the injury suffered.” Losch v. Parkesburg, 736 F.2d 90 3, 910 (3d Cir. 1984). Police departments cannot be sued in conjunction with m unicipalities because police departm ents are adm inistrative arms of m unicipalities, not separate entities. Adam s v. City of Cam den, 461 F. Supp. 2d 263, 266 (D.N.J . 20 0 6); Bonenberger v. Plym outh Twp., 132 F.3d 20 , 25 (3d Cir. 1997) (holding police departm ent and m unicipality same for § 1983); N.J . Stat. Ann. § 40 A:14-118 (m unicipal police departm ent is “an executive and enforcem ent function of m unicipal government”). Defendants’ m otions As an initial m atter, the Court notes that GJ J M does not object to dism issal of its request for m onetary dam ages. [Civil Action No. 17-6879, Doc. 14.] Regarding the rem aining claim for prospective injunctive relief, the Court finds it has been pled sufficiently. In briefing, GJ J M voluntarily dism issed the claim s against the Atlantic City Police Department and its Chief of Police as duplicative of 11 those against the City. [Doc. 22.] As to Atlantic City, GJ J M has failed to allege the existence of any official policies or custom s that m ay cause or have caused a constitutional violation. See, e.g., McTernan v. City of York, Pa., 564 F.3d 636 (3d Cir. 20 0 9) (“[A plaintiff] m ust identify a custom or policy, and specify what exactly that custom or policy was.”). The Amended Com plaint does not identify conduct of a m unicipal decisionm aker or specify a custom or policy of Atlantic City that could form the basis for m unicipal liability. To the contrary, the record indicates that Atlantic City has not sought to enforce the State statute at issue. GJ J M’s conclusory allegations therefore are unsupported by any facts alleged and insufficient to state a plausible Monell claim . Accordingly, the City Defendants’ m otion to dism iss the Am ended Com plaint will be granted. Next, the New J ersey Division of Alcoholic Beverage Control (“NJ ABC”) and its Director argue that they are not proper defendants because they have no role in enforcing N.J . Stat. Ann. § 2C:33-27. The State acknowledges “[t]he New J ersey Legislature has delegated authority over the m anufacture, sale, and distribution of alcoholic beverages in the State to the ABC and has authorized the Director of the ABC, David Rible, to enforce the State’s rules and regulations related to alcohol. See N.J . Stat. Ann. § 33:1– 3.” [17-6879, Doc. 11.] The State’s ABC Handbook indicates: 12 Under no circum stances m ay any “B.Y.O.B.” (Bring Your Own Bottle) be advertised in any fashion by an unlicensed restaurant or other public place where food or beverages are sold to the general public. A person who is found guilty of violating this prohibition is considered a disorderly person. By definition (N.J .S.A. 2C:33-27), B.Y.O.B. prohibits sales of alcohol and relates to unlicensed prem ises. Accordingly, questions relating to B.Y.O.B. are generally not within the purview of the ABC and should be directed to appropriate local law enforcem ent officials. * * * Since the statute (N.J .S.A. 2C:33-27) applies to non-licensed prem ises, violations should be reported to the police department of the m unicipality in which the offending restaurant is located. Alcoholic Beverage Control Handbook at 12, available at http:/ / www.nj.gov/ oag/ abc/ downloads/ abchandbook0 2.pdf (last visited on December 20 , 20 17). Accordingly, the State argues that local police departments are the enforcers of the BYOB advertising statute at issue. During oral argument on the instant m otions, the State represented that under N JABC regulations, an entity could not include religious symbolism or a statem ent about curative or therapeutic effects on an advertisement for happy hour specials. “That’s not perm itted when you’re advertising for alcohol in the State of New J ersey, that’s all under the ABC regulations” for licensed and regulated entities. (Tr. 29:7-15.) Considering the current record before it, the Court is not inclined to dism iss NJ ABC or Rible as having no responsibility with respect to the regulation of alcohol. 13 Prelim inary Injunction Standard A prelim inary injunction “is an extraordinary rem edy . . . which should be granted only in lim ited circum stances.” Am erican Tel. & Tel. Co. v. Winback & Conserve Program , Inc., 42 F.3d 1421, 1427 (3d Cir. 1994) (citation om itted). A prelim inary injunction “should not be granted unless the m ovant, by a clear showing, carries the burden of persuasion.” Mazurek v. Arm strong, 520 U.S. 968, 972 (1997) (per curiam ) (internal quotations om itted; emphasis in original). “[T]he requirement for substantial proof” is higher for “a plaintiff's m otion for prelim inary injunctive relief” than it is for a “defendant’s m otion for sum m ary judgment[,]” where “one would dem and som e evidence . . . in order to avoid a nonsuit.” Id. (em phasis in original); see also Schuchardt v. President of the U.S., 839 F.3d 336, 351 (3d Cir. 20 16) (citing Obam a v. Klaym an, 80 0 F.3d 559, 568 (D.C. Cir. 20 15) for proposition that “sum m ary judgm ent im poses a lighter burden than the ‘substantial likelihood of success’ necessary to obtain a prelim inary injunction”). To prevail on a m otion for prelim inary injunctive relief, the m oving party m ust show as a prerequisite: (1) a reasonable probability of eventual success in the litigation, and (2) that it will be irreparably injured ... if relief is not granted . . . . [In addition,] the district court, in considering whether to grant a prelim inary injunction, 14 should take into account, when they are relevant, (3) the possibility of harm to other interested persons from the grant or denial of the injunction, and (4) the public interest. Reilly v. City of Harrisburg, 858 F.3d 173, 176 (3d Cir. 20 17) (quoting Del. River Port Auth. v. Transam erican Trailer Transport, Inc., 50 1 F.2d 917, 919-20 (3d Cir. 1974) (further internal citations om itted)). “[A] district court—in its sound discretion—should balance th[e]se four factors so long as the party seeking the injunction m eets the threshold on the first two.” Reilly, 858 F.3d at 176. Reasonable probability of success In order to m eet the threshold to establish the first factor, the m oving party “m ust dem onstrate that it can win on the m erits (which requires a showing significantly better than negligible but not necessarily m ore likely than not).” Reilly, 858 F.3d at 179. However, “m ore than a m ere possibility of relief is required” to m ake the required showing; the moving party m ust show “a reasonable probability of eventual success.” Id. at 179 n.3 (internal quotations om itted). New J ersey’s statutory ban on BYOB advertising places a contentbased restriction on speech that fails strict scrutiny because it is not supported by a compelling government interest nor is it the least restrictive m eans of achieving the government’s stated purpose. As stated above, 15 “[c]ontent-based laws– those that target speech based on its com m unicative content—are presum ptively unconstitutional and m ay be justified only if the government proves that they are narrowly tailored to serve com pelling state interests.” Reed, 135 S. Ct. at 2226 (citing R.A.V. v. St. Paul, 50 5 U.S. 377, 395 (1992)). “Com m ercial speech is no exception.” Sorrell v. IMS Health, Inc., 564 U.S. 552, 566 (20 11) (where Supreme Court applied heightened “strict scrutiny” standard to cases of com mercial speech). In Reed, the Suprem e Court struck down a sign ordinance which included various exceptions and variable standards depending on whether the sign was political, elections-oriented, or bore som e other non-com m ercial m essage. The Court found that the ordinance was content-based “because of the topic discussed or the idea or message expressed” and therefore subject to strict scrutiny. 135 S. Ct. at 2227. The Court previously held that “when a State entirely prohibits the dissem ination of truthful, nonm isleading com mercial m essages for reasons unrelated to the preservation of a fair bargaining process,” its law would be subject to “rigorous review.” 44 Liquor Mart, Inc. v. Rhode Island, 517 U.S. 484, 50 1 (1996) (finding unconstitutional a statutory prohibition against advertisements that provided the public with accurate inform ation about retail prices of alcoholic beverages). In that case, the Court struck down a 16 Rhode Island statute that prohibited “‘advertising in any m anner whatsoever’ the price of any alcoholic beverage offered for sale in the State; the only exception [was] for price tags or signs displayed with the m erchandise within licensed prem ises and not visible from the street.” Id. at 489. In justifying the im plementation of strict scrutiny for content-based bans, the Court stated, “[o]ur com mercial speech cases have recognized the dangers that attend governm ental attem pts to single out certain m essages for suppression.” Id. at 50 1. “[T]hey all but foreclose alternative m eans of dissem inating certain inform ation.” Id. As in Reed, the BYOB advertising ban in this case “‘on its face’ draws distinctions based on the m essage the speaker conveys.” Reed, 135 S. Ct. at 2227 (citing Sorrell, 564 U.S. 564-66). It is therefore presum ptively unconstitutional and subject to strict scrutiny. Further, as adm onished in 44 Liquorm art, the ban in this case “fail[s] to leave open ‘satisfactory’ alternative channels of com m unication.” 44 Liquorm art, 517 U.S. at 50 2 (citations om itted). Rather, it provides a com plete ban on truthful, nonm isleading comm ercial speech about a lawful product. The State Defendants have presented no com pelling governm ent interest for banning BYOB advertising, yet perm itting liquor stores and restaurants with liquor licenses to advertise on-site alcohol sales. Citing the 17 Twenty-first Am endm ent, the State argues that it has a strong interest in regulating alcoholic beverages to protect the health, safety, and welfare of the people of the State through the prom otion of tem perance. The Supreme Court has m ade clear, however, specifically with respect to the advertisement of alcoholic beverages, that banning speech is different from and m ore intrusive than banning conduct. See 44 Liquorm art, 517 U.S. at 511-12 (“it is no answer that com m ercial speech concerns products and services that the government m ay freely regulate”). See also Players Int’l, Inc. v. United States, 988 F. Supp. 497 (D.N.J . 1997) (distinguishing governm ent’s ability to regulate activities from constraints on speech regarding the activity). Alternatively, even if the BYOB advertising ban is merely considered com m ercial speech, defined as “expression related solely to econom ic interests of the speaker and its audience,” Central Hudson Gas & Elec. v. Public Serv. Com m’n, 447 U.S. 557 (1980 ), it fails interm ediate scrutiny. 4 Under the Central Hudson test, a court first inquires whether the com m ercial speech at issue concerns a lawful activity and is not m isleading; if not, it is without First Am endment protection entirely. Central Hudson, Notably, however, the Supreme Court has applied the heightened strict scrutiny standard to cases of com mercial speech. See Sorrell, 564 U.S. 552. 4 18 447 U.S. at 566. The remainder of the test allows the governm ent to regulate nonm isleading com m ercial speech concerning a lawful activity where: it asserts a substantial interest in regulating the speech; the regulation directly advances the governm ental interest asserted; and the regulation is not more extensive than necessary to serve that interest. Id. In Central Hudson, a state public utility com m ission com pletely banned prom otional advertising by an electric utility. The Suprem e Court determ ined that the expression regulated was com mercial speech that should enjoy First Am endm ent protection to protect the fact that it inform ed society, as the utility com pany’s m essage prom oting the use of electricity was not m isleading or illegal. Additionally, the governm ent had a substantial interest in conserving energy and preserving a fair rate structure and the ban on prom otional advertising directly advanced those interests. However, the com plete ban was not narrowly tailored to address the im pact of whether the prom otional advertising at issue had any impact on the government’s interest in energy conservation. Id. Subsequently, a unanim ous Suprem e Court ruled that a federal law prohibiting the disclosure of the alcohol content of beer on labels failed the Central Hudson test’s requirement that the regulation directly advance the governm ent interest. Rubin v. Coors Brewing Co., 514 U.S. 476 (1995). 19 While federal law prohibited the disclosure of alcohol content on labels unless required by state law, disclosure of alcohol content in advertising applied only in 18 states that affirm atively prohibited it. As such, producers were perm itted to disclose alcohol content in advertising in m uch of the country, presum ably advancing com petition for business based on higher alcohol content. The Court determ ined that curbing the advertising of alcohol content of beers would be a better way of coping with strength wars than regulating labels, so the regulation at issue did not directly advance the governmental interest asserted. Further, the Court determ ined that the federal law prohibiting disclosing alcohol strength on labels was not sufficiently narrowly tailored to the government’s goal; that is, the governm ent could directly lim it the alcohol content of beer instead. Id. New J ersey’s ban on BYOB advertising raises sim ilar concerns. Indeed, in writing for the plurality in 44 Liquorm art, J ustice Stevens cautioned that the Central Hudson test should be applied with “special care,” as blanket bans on com mercial speech have historically been disfavored by the Court and, when unrelated to consumer protection, rarely survive constitutional review. 517 U.S. at 50 0 , 50 4. Allowing BYOB advertising concerns a lawful activity and would not be m isleading. The State, however, has neither asserted a substantial interest in regulating the 20 speech at issue, nor shown that the regulation directly advances the governm ental interest asserted and is not m ore extensive than necessary to serve that interest. Irreparable harm To satisfy the second factor, the m oving party “m ust dem onstrate . . . the probability of irreparable harm if relief is not granted.” Frank’s GMC Truck Center, Inc. v. General Motors Corp., 847 F.2d 10 0 , 10 2 (3d Cir. 1988) (internal quotations om itted). “In order to demonstrate irreparable harm the plaintiff m ust dem onstrate potential harm which cannot be redressed by a legal or an equitable rem edy following a trial. The prelim inary injunction m ust be the only way of protecting the plaintiff from harm .” Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 80 1 (3d Cir. 1989). The m oving party m ust dem onstrate that it is likely to suffer “actual or im m inent harm which cannot otherwise be compensated by m oney dam ages,” or it “fail[s] to sustain its substantial burden of showing irreparable harm.” Frank’s GMC, 847 F.2d at 10 3; see also Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (20 0 8) (“Our frequently reiterated standard requires plaintiffs seeking prelim inary relief to dem onstrate that irreparable injury is likely in the absence of an 21 injunction.”) (Em phasis in original). In short, “a movant for prelim inary equitable relief m ust . . . dem onstrate . . . that it is m ore likely than not to suffer irreparable harm in the absence of prelim inary relief.” Reilly, 858 F.3d at 179 (footnote om itted). “The loss of First Am endment freedoms, for even m inim al periods of tim e, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). For that irreparable injury to support granting a prelim inary injunction, plaintiffs m ust show “a chilling effect on free expression.” Dombrowski v. Pfister, 380 U.S. 479, 487 (1965). Accord Hohe v. Casey, 868 F.2d 69, 72-73 (3d Cir. 1989) (noting that “the assertion of First Am endment rights does not autom atically require a finding of irreparable injury,” rather, “plaintiff[ ] m ust show ‘a chilling effect on free expression.’”) As stated above, dam ages are not available as an alternative in this case. In addition, GJ J M has noted the chilling effect that the statutory BYOB advertising ban has had in that it has chosen to censor its constitutionally protected speech to avoid arrest. Defendants point out that GJ J M has been incorporated since 20 0 9, at which tim e the BYOB advertising ban had been in place, so a prelim inary injunction should be denied for failing to m eet the requirement of im m ediate irreparable harm. 22 However, where probable success on the m erits of a constitutional claim is shown, and such violation will continue unless enjoined, the continuing constitutional violation can constitute irreparable harm. Stilp v. Contino, 613 F.3d 40 5, 40 9 (3d Cir. 20 10 ) (noting that First Am endm ent violation satisfies irreparable injury requirement). Balance of harms The third factor requires the court to “balance the parties’ relative harm s; that is, the potential injury to the plaintiffs without this injunction versus the potential injury to the defendant with it in place.” Issa v. School Dist. of Lancaster, 847 F.3d 121, 143 (3d Cir. 20 17). At this stage, a court should also take into account “the possibility of harm to other interested persons from the grant or denial of the injunction.” Reilly, 858 F.3d at 176 (quoting Del. River Port Auth., 50 1 F.2d at 920 (further citations om itted)). “[W]hen considerable injury will result from either the grant or denial of a prelim inary injunction, these factors to som e extent cancel each other[.]” Del. River Port Auth., 50 1 F.2d at 924. The assertion of serious First Am endment questions has been held to com pel a finding that the balance of hardships tips sharply in the plaintiff’s favor. Am erican Bev. Ass’n v. San Francisco, 871 F.3d 884, 898 (9th Cir. 20 17). (quotation om itted). 23 The Court finds that balancing the parties’ harms in this case favors granting an injunction. Public interest Finally, the Supreme Court has noted that “parts of equity m ay, and frequently do, go much farther both to give and withhold relief in furtherance of the public interest than they are accustom ed to go when only private interests are involved.” Instant Air Freight, 882 F.2d at 80 3 (quoting Virginian Ry. Co. v. System Fed’n No. 40 , 30 0 U.S. 515, 552 (1937)). “In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary rem edy of injunction.” Weinberger v. Romero-Barcelo, 456 U.S. 30 5, 312 (1982). While weighing whether the public interest favors a prelim inary injunction “is often fairly routine,” Issa, 847 F.3d at 143 (internal quotations om itted), “‘where an injunction is asked which will adversely affect a public interest for whose impairment, even tem porarily, an injunction bond cannot com pensate, the court m ay in the public interest withhold relief until a final determ ination of the rights of the parties, though the postponem ent m ay be burdensom e to the plaintiff.’” Weinberger, 456 U.S. at 312-13 (quoting Yakus v. United States, 321 U.S. 414, 440 (1944)). 24 When there are no societal benefits justifying the suppression of First Am endm ent rights, the public interest is in favor of granting an injunction. Tenafly Eruv Assoc., Inc. v. Borough of Tenafly, 30 9 F.3d 144, 177 (3d Cir. 20 0 2). Further, there is a public interest in preventing the hindrance of consum er choice as well as im pediments to debate over issues of public policy. See, e.g., 44 Liquorm art, 517 U.S. at 495-97, 50 3 (describing history and im portance of advertising in United States; “the same interest that supports regulation of potentially m isleading advertising, nam ely, the public’s interest in receiving accurate com m ercial information, also supports an interpretation of the First Am endm ent that provides constitutional protection for the dissemination of accurate and nonm isleading comm ercial m essages”); Pacific Gas & Elec. Co. v. Pub. Utilities Com m’n of California, 475 U.S. 1, 8 (1986) (“By protecting those who wish to enter the m arketplace of ideas from government attack, the First Am endment protects the public’s interest in receiving inform ation.”); Virginia Bd. of Pharm acy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 765 (1976) (“It is a m atter of public interest that [com m ercial] decisions, in the aggregate, be intelligent and well inform ed. To this end, the free flow of comm ercial inform ation is indispensable.”). 25 The BYOB advertising ban here im plicates the rights of consum ers to obtain truthful advertising to m ake inform ed decisions regarding businesses and services. Conclusion Here, the status quo has not only been non-enforcement, but also has been no BYOB advertising by GJ J M. Thus, m aintaining the status quo in this case requires that the parties continue to act as they have, nam ely, the Defendants will not enforce and GJ J M will not advertise before an adjudication on the m erits can be made as to whether the statute is unconstitutional. In sum mary, the motion to dism iss the Com plaint filed by Defendants City of Atlantic City, City of Atlantic City Police Department, and Henry White, Chief, Atlantic City Police Departm ent [21] will be granted. The m otion for prelim inary injunction filed by GJ J M, [5] in Civil Action No. 176879, will be granted in the form discussed above, and the cross-m otion to dism iss the Com plaint by Defendants New J ersey Division of Alcoholic Beverage Control, Christopher Porrino, and David P. Rible, [5] in Civil Action No. 17-6879, will be denied. An appropriate Order will issue. Dated: Decem ber 21, 20 17 / s/ J oseph H. Rodriguez J OSEPH H. RODRIGUEZ U.S.D.J . 26
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