New Bedford Liquor Store Owners Receive Partial Injunction Against Nip Bottle Ban

NEW BEDFORD (WBSM) — New Bedford liquor store owners have received at least some temporary relief against the impending nip bottle ban instituted by the City’s licensing board.

Judge Raffi Yessayan issued a preliminary injunction today that will allow liquor stores in the city to continue selling miniature containers of alcohol, commonly referred to as “nips,” despite a looming August 1 date for a nip ban passed by the licensing board to go into effect known as “Regulation 48.”

Judge Yessayan’s order states that “the licensing board of New Bedford and its agents are restrained from initiating prosecution under or other enforcing the provisions of Regulation 48, banning the sale of alcoholic beverages in containers less than or equal to 100 milliliters, pending the issuance of a final judgment in this action.”

What that means is that as the consortium of liquor store owners continues to fight the ban, sales of nips will continue on unless the state's regulatory commission steps in – which it is unlikely to do.

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The liquor store owners appealed the licensing board’s ban to the Alcoholic Beverages Control Commission (ABCC), which was unsuccessful. The matter is now before Superior Court with the store owners seeking the injunction to allow for the continued sale of nips as the August 1 date looms. Judge Yessayan ruled it was “unlikely” that the case would be decided before the ban was slated to go into effect.

Judge Yessayan ordered the motion for a preliminary injunction be “allowed in part,” as the store owners also sought an injunction against the ABCC. That part was denied, as he ruled the court does not have jurisdiction over the ABCC and because the ABCC argued that the liquor stores would not be able to successfully demonstrate that the ABCC can invalidate a local regulation, something the ABCC has previously argued it does not have the authority to do.

However, the injunction against the licensing board was granted because the court found it would be likely the liquor store owners could prevail in the final decision, based in part on the financial impact the ban will have on the stores – estimated losses ranging from $300,000 to $700,000 in annual revenue and accounting for 20 to 50 percent of sales.

“The court concludes that the plaintiffs have demonstrated sufficient evidence that they will suffer irreparable lost profits if the regulation is enforced during the pendency of this action,” Judge Yessayan wrote.

READ MORE: Judge Raffi Yassayan Grants Injunction to New Bedford Liquor Stores

The store owners also assert that the licensing board was “not lawfully constituted” at the time the ban was passed, that the “members of the licensing board were improperly appointed in violation of governing statutes and thus lacked authority to adopt the regulations.”

Two of the board’s three members were “unenrolled” with a political party and the law requires there to be at least one member from each of the leading parties, Democrat and Republican.

They also argued that the board did not allow enough time for public comment, and the judge wrote that “the forty-five minute comment period could be considered brief in light of the broad impact of the proposed regulation and the large number of persons present seeking to comment” at that meeting.

For those reasons, Judge Yessayan concluded “that the plaintiffs have demonstrated at least a moderate likelihood of success on the merits of their declaratory judgment claim against the board.”

The ban originally was passed by the licensing board in July 2023, with stores given 90 days to sell off their remaining stock of nips. The licensing board argued that the ban was necessary to reduce litter, public drunkenness and underage drinking. Other SouthCoast communities such as Wareham and Fairhaven have banned the sale of nips as well.

Cape Cod towns such as Brewster, Mashpee and Falmouth have nip bans in place, although Sandwich Town Meeting voters opted not to adopt a ban last month. Similarly, a nip ban was voted down in Plymouth in January. Newton and Chelsea have also banned nips.

The date the New Bedford ban would go into effect was later extended to August 1, 2024, even as the New Bedford City Council stood in solidarity with the liquor store owners.

Councilors reacted to the judge’s decision to grant the injunction on Monday.

“Today was a victory for freedom of consumer choice and for small business. The residents of our city, as evidenced by the thousands of signatures they produced via the petition in opposition to this ban, showed me that they did not support a unilateral maneuver against their will,” Councilor at Large Ian Abreu told WBSM.

“I fully acknowledge that we do have a litter problem in our community which we have to address, but this is and was not the way to go about such a complex socio-economic matter,” he said. “I look forward to working with my colleagues in government and those in the private sector to find a common-ground solution to help move New Bedford forward as it relates to the issue of public health, wellness and cleanliness.”

Ward 6 Councilor Ryan Pereira believes if there was to be a ban, the decision should be made by the New Bedford City Council, similar to the decision to ban single-use plastic bags.

“Today, the court ruled in favor of the liquor stores preliminary injunction. The ban of nips is a serious piece of legislation, one that I believe belongs in the City Council,” Pereira told WBSM. “I maintain that a ban is a legislative issue, not a regulatory one in which a board of appointed members should decide. I will continue to watch this issue as the group continues to appeal through the appropriate channels.”

The liquor store owners supplied WBSM with a collective statement on Judge Yessayan’s decision.

“According to the court’s ruling that we received yesterday, all the liquor stores in the city intend to sell nips after the August 1 deadline unless the court or another authority tells us otherwise,” the store owners said.

The City, meanwhile, said the issues the ban was supposed to help are still an issue.

“The Licensing Board’s goal in unanimously voting in favor of the ‘nip’ ban was to cut down on litter and vagrancy issues, and both are still problems today, two months before the ban was set to take effect. The City Solicitor’s Office is reviewing the decision,” said Jonathan Darling, spokesperson for the City of New Bedford.