UPDATE: Boardwalk Says Offer Still on Table Despite DCA Letter

A Boardwalk offer to pay $800,000 over five years is "still on the table," despite that the state says a related town proposal "appears to be unlawful."

Marilou Halvorsen, Director of Marketing for Jenkinson's Boardwalk, said late Tuesday afternoon that Jenkinson's and Martell's are still jointly offering the payment, despite that the state Department of Community Affairs is questioning the legality of

"But if they pass a 12 o'clock bar closing, I'm sure it won't be," Halvorsen said.

"But our offer is still on the table because it's in everyone's best interest to come up with a resolution," she said.

Now it remains to be seen if a majority of the mayor and council decide tonight whether to accept the proposal, even as boardwalk businesses sue the town for the recently adopted parking plan.

"It appears to be unlawful" for Point Beach to impose extra fees on bars to stay open past midnight, according to a letter from the state Department of Community Affairs (DCA) to Mayor Vincent Barrella.

The letter (see first attached PDF), dated Monday, comes as the Point Beach Mayor and Borough Council are poised to vote tonight on two ordinances:

The meeting is scheduled for 7 p.m. at on New Jersey Avenue.

Barrella and the three councilmembers who have supported the ordinances have said the fees are being offered as an option to stay open past midnight, rather than the town mandating payment.

However, the letter from DCA Acting Commissioner Richard E. Constable III to Barrella does not draw a distinction between fees, related to the serving of alcohol, offered as an option, and those types of fees that are mandated as part of liquor license renewal fees.

The letter says the fees called for in the second ordinance would increase the liquor license renewal fees beyond the amount allowed by state law.

Constable acknowledges that municipalities are permitted to set the hours of operation for bars, but says that state law caps the amount of the liquor license renewal fees to $2,500 for retail consumption licenses and $188 for club licenses.

Regarding the retail licenses, "no ordinance shall be enacted which shall raise or lower fees to be charged for this license by more than 20 percent from that charged in the preceding license year of $500, whichever is lesser," Constable says in his letter.

"The conjunctive nature of the ordinances suggest that the Borough is looking to use its power to regulate closing times as a means to increase liquor license fees more than 10 times what would be permitted" under state statute, the letter continues.

"The Borough appears to be undertaking an unlawful effort to institute a fee that it has no power to institute," the letter states.

He goes on to remind the mayor that the DCA's Division of Local Government Services approves municipal budgets and notes that the town has already adopted its budget.

"If the Borough intends to includes these proposed fees in the 2013 budget, the Borough will need to share its legal theories as to why such a fee increase is lawful," Constable concludes. The letter is cc'd to Thomas H. Neff of the Division of Local Government Services.

The letter opens by saying that Constable is writing to Barrella in response to Barrella's questions, in a May 11 letter (see second attachment), about why the Division was questioning if the ordinance regarding fees was lawful.

Barrella said he will reserve any comments until tonight's meeting.

When asked about Constable's letter, Councilmember Bret Gordon said, "It's just one person's opinion."

Gordon said he has been in favor of both bar ordinances and viewed the one regarding fees as "a compromise."

"It's a measure to offset the high cost of policing the bars and for them to stay open until 2 a.m.," Gordon said.

Municipal Attorney Sean Gertner said that he is not commenting on Constable's letter at least until after discussing it with the mayor and council.

The concept of the fees viewed as an extension of liquor license renewal fees was expressed about a month ago by

In a letter, Livelli had said that the Division of Alcoholic Beverage Control (ABC) of the state Department of Law and Public Safety will not allow Point Beach to impose fees to serve beyond midnight because bars in town already pay the maximum fee of $2,500 allowed by ABC regulations for their liquor licenses.

Zachariah Hosseini, a spokesperson for ABC, said in a telephone interview with Patch at the time that municipalities have the right to regulate hours of operation and the serving of alcohol of establishments that have liquor licenses.

Regarding whether bars in town already pay the "maximum" fee for licenses, Hosseini said, "We don't regulate the market for liquor licenses. That's regulated by the town."

Regarding Livelli's assertion that ABC will not allow Point Beach to mandate that bars stop serving at midnight or pay a fee, Hosseini said, "We can't comment on the validity of that argument until it gets to the point that the town or the bars write to us asking for information or an opinion or it gets litigated."

The ABC would be the venue for such litigation, he added. He did not say the DCA would play a role in determining whether the municipality might be exceeding the maximum liquor license renewal fees by offering the fees as an option to stay open past midnight.

"Right now, this is still a local issue," Hosseini said. "This is not our business yet."

Many in Point Beach, when they hear about the DCA's involvement, will think back to the end of March when Gov. Christie was asked about the ongoing bar issues in the town while the . When Point Beach resident Marilyn Burke asked Christie about it, he said he would ask the DCA to review the matter.

Following that, Barrella said at a council meeting that after hearing about the governor's comment he called the DCA and he got the impression that officials there were going to let the municipal officials handle the issue as their own local matter.

Patch will update this story as more information becomes available.