That's bad, winemakers say. But their big fear is that their businesses will be trampled in a broader court battle over the issue of direct shipment of wine.
"We have a court ready to drop a decision that has the potential to shut down our tasting rooms, and that would be catastrophic for our industry," said Scott Donnini, a Salem County lawyer-turned-vintner, who chairs the legal committee of the Garden State Wine Growers Association.
Wineries in New Jersey sell most of their wine at on-premises tasting rooms and at their stand-alone stores or kiosks within restaurants.
In December, the U.S. Court of Appeals for the Third Circuit said New Jersey had unconstitutionally discriminated against out-of-state wineries by permitting only in-state wineries to sell directly to consumers and by banning shipments of wine to consumers.
The appeals court sent the case back to a lower court with two options: Give out-of-state wineries the same right to sell to consumers, or prohibit all wineries from selling directly to consumers.
The lawsuit was brought in 2003 by New Jersey wine enthusiasts and a California winery, which argued New Jersey should not be allowed to ban shipment of wine to New Jersey consumers. Additionally, they objected to a provision in state law that permitted only in-state wineries to sell directly to consumers.
Unlike 38 states, New Jersey does not allow wine sellers, in or out of state, to ship directly to consumers.
The two houses in the state legislature could not agree on a solution that would satisfy New Jersey's liquor industry, which opposes direct shipping, and a coalition of consumer groups that supports the practice.
That left New Jersey wineries in limbo.
"We're in the weird position of being a political football that no one really wants to play with," said Donnini.
The New Jersey legislative impasse leaves the matter to U.S. District Judge Katharine Hayden in Newark. She could "level up," giving out-of-state and in-state producers the same right to sell directly to consumers, or "level down," prohibiting all wineries from selling directly to consumers.
If she prohibited all wineries from selling directly to consumers, many of New Jersey's 40 wineries would go out of business, according to the Garden State Wine Growers Association. Winemaking is the fastest-growing segment of agriculture in New Jersey, the nation's seventh-largest wine-producing state.
"We are fearful that the clock is ticking on our industry, since the inaction of the Assembly has placed New Jersey wine owners at the mercy of a U.S. District Court judge," said Ollie Tomasello, president of the growers' association and owner of Plagido's Winery in Hammonton.
Last month, Hayden ordered the warring sides in the federal court case to meet to try to resolve matters. If they failed to reach agreement, she said, they would have until Aug. 5 to file their arguments in the case.
Arguments in the case could be presented shortly after Labor Day, with a court ruling possible in the fall.
"No one knows what her thinking is going to be," said Tom Cosentino, a spokesman for UncorkNJ, a coalition that supports direct shipping. "That's what's keeping everyone on edge."
Contact staff writer Paul Nussbaum at 215-854-4587or pnussbaum@phillynews.com.
