NJABC Issues Guidance and Provides Relief to Certain Licensees and Permit Holders During COVID-19 Crisis
The COVID-19 pandemic has presented unforeseen challenges to countless businesses across the country. Businesses that serve alcoholic beverages for on-premises consumption have been hit particularly hard. Through Executive Order No. 107 (the “Order”), and in connection with the declared State of Emergency, New Jersey Governor Phil Murphy imposed certain restrictions on restaurants and bars. On March 30, 2020, the State of New Jersey Division of Alcoholic Beverage Control (“Division”) issued Advisory Notice 2020-03, which outlines the Division’s interpretation of the Order and provides guidance to licensees concerning the activities in which they may engage in during the COVID-19 crisis. All license holders in the state should review the advisory notice in full, in addition to some of the major points outlined below. Following those points is an explanation of the special ruling regarding Limited Brewery License holders that was issued by the Division concurrently with the advisory notice, and a summary of some recent changes in protocol for interactions with the Division and its staff. Lastly, there is a brief summary of the April 1, 2020 order issued by the Division authorizing the extension of certain alcoholic beverage permits.
Advisory Notice 2020-03
- Retail consumption licensees: Bars, restaurants, or other establishments holding retail licenses may be open during this time and sell alcoholic beverages in their original sealed containers (including “growlers” and “crowlers”) for either pick-up or delivery. If providing delivery, the licensee must obtain a transit insignia from the Division or use an otherwise licensed entity authorized to transport alcoholic beverages. No on-premises consumption is permitted.
- Social clubs: All public and private social clubs are closed to the public.
- Concessionaire permits: Holders of concessionaire permits must request permission from the Division to sell alcoholic beverages in original sealed containers for off-premises consumption, and such permission will be granted upon a finding of “good cause.” These requests shall be liberally construed and will be considered on an expedited basis. For requests that are granted, the licensee must obtain a transit insignia from the Division or use an otherwise licensed entity authorized to transport alcoholic beverages.
- Manufacturing licenses: Holders of one of six types of manufacturing licenses (breweries, wineries, etc.) may sell alcoholic beverages in original sealed containers (including “growlers” and “crowlers”) from their tasting rooms for customer pick-up, or for delivery if the licensee obtains a transit insignia from the Division or uses an otherwise licensed entity authorized to transport alcoholic beverages. The holders of these licenses shall not permit any on-premises consumption. Craft distilleries are still not permitted to ship distilled spirits direct to customers’ homes.
- Liquor stores, food stores, and grocery stores: These stores are deemed essential businesses and may remain open, but must follow social distancing requirements and use sanitizing products on common surfaces. Whenever practicable, the licensee must provide pick-up services outside or adjacent to their stores.
Limited Brewery Special Ruling
Concurrent with the advisory notice, the Division issued a special ruling (the “Limited Brewery Special Ruling”) that provides relief to the New Jersey establishments holding Limited Brewery Licenses. Specifically, the Limited Brewery Special Ruling permits Limited Brewery licensees to offer home delivery of their alcoholic beverages in original containers for the duration of the public health emergency. Although the Order allows for this, a previous Division special ruling prohibited Limited Brewery licensees from engaging in such sales for delivery. Without the Limited Brewery Special Ruling, these licensees would be limited to conducting only sales for pick-up during the duration of the COVID-19 emergency.
This previous special ruling, issued on May 28, 2019 (“May 2019 Special Ruling”), prohibited a Limited Brewery licensee from delivering products produced on its licensed premises to consumers’ homes. This was a discretionary decision of the Division, as no such restriction is codified in the Alcoholic Beverage Control Act (the “Act”). These licensees sought relaxation of the delivery prohibition in response to the COVID-19 crisis, and the Division has granted that request through the Limited Brewery Special Ruling. The Limited Brewery Special Ruling will allow Limited Brewery licensees to offer home delivery of their products for the duration of the crisis. The products must be in original sealed containers, and the deliveries to the consumers’ homes must be made in vehicles that have a transit insignia permit. The Division found this short-term privilege appropriate, as these licensees will suffer economic hardship without the relaxation and it will not unduly burden other retail licensees, who are still permitted to offer home delivery.
Interaction with the Division
The Division has posted some guidelines for interaction with agency personnel and for making submissions. In-person visits to the Division’s offices are not permitted without appointments. Division staff will be available for telephone or video conferences. Applicants and licensees are encouraged to make payments by e-check or credit card.
Additionally, unless otherwise required by statute or regulation, all documents sent to the Division should be submitted by email in pdf format to the appropriate Bureau or staff member. Routine filing of paper documents is discouraged. In some cases, Division attorneys or staff may request delivery of hard copies by mail or courier service. Any paper document sent to the Division by mail must also be accompanied by a pdf version on electronic media such as a thumb drive or by email.
The Director determined that due to travel and business restrictions related to the State of Emergency, it became difficult or impossible for the holders of certain state-issued permits to renew them in a timely manner. These permits were set to expire on March 31, 2020, so the Director issued this order on April 1, 2020 to extend the deadline until the State of Emergency is lifted, for those businesses that otherwise are permitted to operate under Executive Order 107. The order applies to the following permits:
- Ad-Interim (AI) permits;
- Temporary Authorization to Operate Permits (TAPs); and
- Currently issued permits, including minor employment permits and “blanket employment” permits.
Each permittee is required to apply for, renew, or obtain a new permit within 14 days of the lifting of the State of Emergency.
The attorneys at Gibbons will continue to monitor developments within this space and provide pertinent updates as this crisis continues to unfold.