Camden County breweries say a spate of enforcement actions illustrates how their nascent industry needs legislative relief from regulations they say are either loosely understood or overly prohibitive.
By Matt Skoufalos | April 3, 2018
Almost since it opened, Devil’s Creek Brewery in Collingswood has run afoul of the local zoning officer for holding activities prohibited by its charter.
“It’s been a whole history of TVs that were showing football games,” said Collingswood Mayor Jim Maley.
“Then they had live music for a while; now they’re doing all these kinds of different events.”
The mayor said he’s personally spoken with its owners about curtailing their activities, “but they just kept doing stuff.”
Last week, Devil’s Creek announced on its Facebook page “that we have been forced to halt all events… due to penalties imposed by the Collingswood Zoning Office,” and invited its followers to testify at the upcoming June meeting of the borough zoning board.
Maley marked the public appeal as “a new change in this dialogue that we’ve had for a good year-and-a-half.
“This [brewery] was approved with really tight conditions,” he said.
“If you want to change those conditions, there’s one way you change those conditions: you go to the board.”
The mayor said Devil’s Creek has been “pushing the envelope” of what the borough defined as appropriate use of the space in the two years since it opened, “trying to do things that are bar-like more and more,” in violation of its narrow terms of operation.
(Collingswood changed its municipal law in 2015 to remove breweries from its list of prohibited uses in the borough downtown.)
“The resolution is pretty tight, because we wanted to have it be tight, because it was new,” Maley said.
“They have gone beyond that a fair amount of times, and we told them they have to go to the board to get this okayed, and they still need to do it. And that’s what we’ve been dealing with for the last 18 months.”
Last summer, Devil’s Creek submitted, and then withdrew, an application to the borough zoning board “for a variance to produce soft drinks, install television and conduct movie nights… trivia, karaoke, readings, painting, holiday parties and other group events.” It was on the docket to apply again at the March 2018 meeting.
Although many of those same kinds of activities are held at different restaurants and retail businesses in Collingswood, Maley said those businesses are approved for such uses under local zoning law. Devil’s Creek, to his thinking, is not.
“It’s a tasting room,” he said. “It’s not a party room.”
Maley emphasized that he doesn’t have any specific objection to the nature of the brewery business, nor does he believe that it conflicts with the restaurant scene Collingswood has worked for years to cultivate.
For the local government, it’s simply a question of following the rules.
“This is what you got approved for [and] you’re doing something that doesn’t fit with that category,” Maley said. “Go to the board, make your case, see if you get it amended.”
Devil’s Creek owner Anthony Abate disagrees.
“They’re in this mode that the only thing we should be doing is letting people taste our beers and then leave,” Abate said.
“If I’m there talking to the customers or asking them silly questions, what’s the difference?
“If I’ve got one group that comes in and orders a pizza and plays bridge and some Scrabble, what’s the difference?”
To Abate, those special events help Devil’s Creek compete in a crowded marketplace, boosting revenues by as much as three times that of a night without events. He contends that the brewery’s use variance “says we’re allowed to operate as a limited brewery, and the auxiliary use says we’re allowed to do all the things a brewery does.
“Every brewery in New Jersey runs events like this, and does more,” Abate said. “We’re contending that we’re inside the use variance. Why are we being treated differently?
“The town loves us,” he said. “The police love us. We’ve never had an incident of any sort. We’re giving people who come into town because of the restaurants a reason to stay in the town.”
In February, Devil’s Creek was also served notice that it must stop allowing customers to bring their dogs (service animals excepted) into the brewery, or face a $1,000 daily fine from the Camden County Board of Health. That memo came from a customer complaint, said Camden County spokesperson Dan Keashen.
New Jersey Administrative Code, Chapter 24 8:24-6.5 (k)
“…live animals shall not be allowed on the premises of a retail food establishment… except … in areas that are not used for food preparation such as dining and sales areas, service animals, such as guide dogs that are trained to assist an employee or other person who is handicapped, are controlled by the handicapped employee or person, and are not allowed to be on seats or tables…”
“It’s clearly stated within New Jersey health code regulation that if you are manufacturing either food or beverage, animals are not allowed within the facility,” Keashen said. “Dogs are still allowed in the outdoor portions of breweries.
“In short, the county health department has a duty to enforce state regulations that ensure the integrity of beverages produced for public consumption,” he said.
For Abate, it’s another instance of feeling like he’s operating a business that’s stuck between worlds.
New Jersey microbreweries are not allowed to serve food, wine, or spirits, a concession to the restaurant lobby during the drafting of the 2012 law that allowed them to open customer tasting rooms. But since they don’t enjoy the same benefits that restaurants do, he believes breweries shouldn’t be held to the same narrow regulations.
“[Officials] cite some law that says bars and restaurants are not allowed to have dogs inside unless they’re service animals,” Abate said.
“Then we go back and say, ‘We want to put on the Eagles game,’ [and] they say, ‘You’re a brewery; only bars and restaurants are allowed to put on the game.’
“Are we a brewery, or are we a bar and restaurant?” he said.
“The problem is there’s just so much going on, and I don’t think the lawmakers can keep up.
“It’s hard for us to compete if we keep getting all these restrictions put on us,” Abate said.
Jamie Queli, who owns Forgotten Boardwalk Brewery in Cherry Hill, and is the president of the New Jersey Brewers Association, said breweries feel like they’re held to conflicting standards that give them all of the liabilities and none of the privileges.
“We have one agency looking at us as a food establishment, and the ABC telling us they will literally put us in alcohol prison [for breaking the rules],” Queli said. “If we can’t serve food, how do we back out of this so we can have dogs allowed on site?
“It’s death by a thousand paper cuts,” she said.
Queli said breweries have historically either welcomed or prohibited dogs according to their individual preferences, but that there’s never been a universal statute to which they’ve been held regarding animals. Forgotten Boardwalk, like many other Camden County breweries, has held multiple fundraisers for animal rescues, and has regular customers who visit with their dogs.
“We only do certain things for charity, and animals was always one of them,” she said.
“It’s hard to continue to rally behind these organizations when we get chopped at the knees saying we can’t have animals at our facility.”
The health department order “is just another check mark of what you can do in Pennsylvania breweries that you cannot do in New Jersey breweries,” Queli said.
“Give us one or the other,” she said. “You don’t want to give us dogs? Fine, give us food. [Bars] already are open seven days a week until two in the morning; you serve wine, you serve distilled spirits, you serve food. Give us a break.”
Double Nickel Brewery in Pennsauken received the same letter of notice that Devil’s Creek and Forgotten Boardwalk did about the prohibition of animals in its tasting room.
Head brewer Drew Perry said the regulation caught him off-guard. Double Nickel is as dog-friendly as any other brewery might be, and Perry said it’s never had any legal concerns from its municipal government.
But not knowing where the next enforcement issue might come from has many brewers looking over their shoulders.
“The rules that we are supposed to follow are extremely gray. If we’re doing things properly, or if we’re skating on thin ice, we don’t know.”
—Drew Perry, Head Brewer, Double Nickel
“The rules that we are supposed to follow are extremely gray,” Perry said. “The standard is arbitrary. It’s frustrating to me. I think the county health department, which is operating under state rules, is treating us the same way as a restaurant, but we can’t operate as a restaurant or a bar.
“If we’re doing things properly, or if we’re skating on thin ice, we don’t know,” he said.
Perry said Double Nickel will continue to focus on being a production-and-distribution brewery, which means the dog prohibition “is not affecting what we do; it’s affecting what we could do.
“It’s very frustrating,” he said. “It just makes you very hesitant to try something new.
“Our business is shipping kegs out, and we want our tasting room to be an ambassador of our beer,” Perry said. “We want people to have a good time. We’re kid-friendly breweries; we provide games, plenty of seating. It’s what it should be.”
Perry and Queli also said that a lot of the presumed prohibited behaviors of breweries—special events, TVs, live music, bar games—were never enshrined into law. They exist only in a brewers guild code of conduct that was fashioned out of deference to the restaurant lobby when the tasting room legislation was passed in 2012.
“It was more of how to keep some bars and restaurants under the impression that we are not competition,” Perry said. “None of that is written into the law.”
To Queli, the question is when state legislation will catch up to the functional activities of brewery culture.
She believes New Jersey “would like to see all that structured better and more defined,” and that most of the pressure for enforcement limiting brewery activities comes from a restaurant lobby that feels its position is threatened by their existence.
“There is an inherent elephant in the room that no one really discusses, which is that what brewery really relies on trivia and these ancillary items if we were making enough revenue?” Queli said.
“We should be solving the problem by helping the breweries make enough revenue so the liquor-license holders stop yelling at them for dumb crap like trivia,” she said.
“Every brewery is going to have its own culture to it,” Queli said. “It’s a social gathering in which we do no harm.”
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