SOMERS POINT — Turn it up.
A litany of tickets last summer has led the owner of The Point beach bar to file a legal action against the city, claiming its alcoholic beverage ordinance relative to outside music is invalid and seeking relief from the penalties and a stop to further enforcement.
The ordinance, passed in July 2000, prohibits any form of outside music, no matter the level, after 11 p.m. Since The Point is an entirely outside operation, it cannot benefit from the loophole that allows music played inside to be audible outside until 2 a.m.
“It’s our understanding … as it now stands, no matter the level of noise, it could be very soft music, it could be heard 5 feet away or 10 feet away. It doesn’t have to be loud, it doesn’t have to be disturbing. It can be electronic. Any music that’s played, any speaker that’s outside after 11 p.m. is flatly prohibited under your ordinance while music generated inside a restaurant — the doors can be open. They can be louder than the outside music — is allowed to play that music until 2 o’clock in the morning when they close,” attorney Stephen Hankin told City Council on June 26.
Gary Holloway of GMH Restaurant Holdings, owner of The Point at 998 Bay Ave., filed a civil action in April to invalidate the city’s bar noise ordinance, claiming it never received state approval.
The complaint states GMH received Planning Board approval in March 2019 to demolish the former restaurant, known then as Baia, leave a free-standing facility known as “The Grill” and conduct an outside, beach-type facility with tables and chairs.
“Throughout the approval process, GMH made clear its intent to operate the property in the same fashion as it and predecessors had by playing of outside music until closing time at 2 a.m.,” the lawsuit states.
It further states that The Grill operated throughout the summers from 2019-23 with outside music until 2 a.m.
“During this time, the city never issued a summons for a violation of ordinance 7-2000,” it states.
That is until July 5, 2024, when GMH was charged with a violation of the noise ordinance, which states that playing music outside is prohibited from 11 p.m. until noon, and stipulates a fine of as much as $1,000 or imprisonment of as long as 90 days for violations.
The city then filed violations July 12, 14, 20, 21 and 26, Aug. 4, 10, 16, 17 and 24.
The filing states that the Department of Environmental Protection never approved of the ordinance, which is required by state law, rendering it invalid.
“Because the DEP has not approved the noise ordinance it cannot be enforced, resulting in the noise complaints being invalid and unenforceable as a matter of law,” the suit states.
Hankin addressed City Council looking to reach an agreement outside of court.
“My purpose is to appeal to your sense of fairness in our attempt to resolve our difficulty with the present noise ordinance that Somers Point has had before any of you served here,” he said. “We don’t want to litigate with the city; that’s the last damn thing we want to do. That’s a waste of Gary’s money. It’s a waste of the city’s money in our opinion.”
Hankin said Holloway has been operating the business under various names since 2004 and playing music outside until 2 a.m. the entire time. He said they would like the city to modify its noise ordinance to allow music to be played outside until 1 a.m.
“He’s not looking for a modification of your ordinance to 2 a.m.,” Hankin said.
The attorney further said that Holloway is looking for permission to have music outside until 1 a.m. only on Friday and Saturday nights and the three summer holidays (Memorial Day, Independence Day and Labor Day) and is unwilling to compromise on midnight. Hankin said it amounts to 17 or 18 weekends.
“If you’re willing to give him till midnight, he doesn’t need that. He’s not asking for 2 a.m. like others that can play music that can be heard outside as long as the speaker is inside until 2 o’clock,” Hankin said.
The attorney said the extra hour is vital to the success of the business.
“The difference in his ability to do business in that extra hour is very important or I wouldn’t be here tonight, there would be no challenge to the ordinance,” he said. “That extra hour allows his business to survive.”
Hankin also argued that the establishment is in the Historical Waterfront Village District, where restaurants and drinking establishments with outside seating are permitted, and not in a residential zone.
City Council President Charlie Haberkorn directed questions to solicitor Tom Smith, who provided the complaint to The Sentinel.
– By CRAIG D. SCHENCK/Sentinel staff