It’s nearly 2019, and as such smoking and the right to smoke in public no longer receives much sympathy. Many universities (including public universities) have implemented rules that you cannot smoke within a designated number of feet of the campus buildings (or even on campus at all). Likewise, many county and local municipalities have instituted similar rules. In the recent published appellate decision in Sparroween d/b/a Cigar Emporium et. al., v. Township of West Caldwell, et. al., the question was raised whether a municipality may implement more restrictive anti-smoking ordinances than the language found in the State’s New Jersey Smoke-Free Air Act.
Can municipalities pass ordinances with more restrictive anti-smoking language than that contained in the New Jersey Smoke-Free Air Act? The three arguments made by petitioners to the appellate court are:
(1) The West Caldwell smoking ordinance was not valid because it was superseded by the Smoke-Free Act; or alternatively:
(2) The Smoking Ordinance operates as a land use ordinance and is not applicable to petitioners’ non-conforming pre-existing use; and
(3) The trial court erred in dismissing petitioners’ complaint before allowing discovery.
Petitioners in this case owned a tobacco retail store/cigar shop in West Caldwell. Inside the store is a seating area for customers to smoke. A year before opening, petitioners advised of an intent that there would be an open indoor smoking area. The Health Officer submitted a memo to both the Planning Board and petitioner explaining that under the Smoke-Free Act they would need to submit a notice of claim for exemption. When the application was granted, the granting language stated: “The resolution [is] conditioned on [complying with] all federal, state and local laws, rules and regulations.” Nearly a year later, the West Caldwell Board of Health passed an ordinance restricting pre-purchase sampling of cigars and tobacco products and required operators of tobacco retailers to register with the Board of Health and to obtain a license from the Township’s Health officer.
In March 2016 the Health Officer entered the store and issued summonses for violations of the smoking ordinance.
After being issued the summons petitioner filed an order to show cause and a temporary injunction pertaining to the smoking ordinance. Petitioners also filed a verified complaint for declaratory judgment in lieu of prerogative writs and an order declaring the smoking ordinance void and illegal.
The issue of preemption and the Smoke-Free Act had never before been ruled on by a New Jersey Appellate Court, making this a case of “first impression.” The New Jersey Smoke Free Act essentially “prohibits smoking of tobacco in an indoor public space or workplace,” although contains exceptions such as for “tobacco retail establishments,” “cigar bars,” “cigar lounges,” and the like. In terms of preemption, the Act itself states that it supersedes lessonerous local ordinances. This matter is distinguishable as it relates to an ordinance that is more restrictive that the Act. Notably, the New Jersey Smoke-Free Act states an exception to preemption when “smoking is prohibited by municipal ordinance under authority of N.J.S.A. 40:48-1 or 40:48-2. The Appellate Court held that this exception clearly inures to West Caldwell’s ordinance being valid and enforceable.
The Court also held that the Smoking Ordinance does not constitute a “land use” ordinance as municipal health boards are granted the authority to both “enact and amend health ordinances” for the purpose of preserving public health, safety, and welfare of a municipality or its inhabitants.
Finally, the Court noted that the smoking ordinance is entitled to a presumption of validity, like any other ordinance. Grabowskiy v. Township of Montclair, 221 N.J, 536, 551 (2015). Accordingly, the Petitioner’s appeal was denied and the trial court’s decision affirmed.
Municipal Health Boards (and likely other government actors) may pass ordinances that are more restrictive than the language contained in the New Jersey Smoke-Free Air Act.