Standard of Review
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New Jersey Municipalities Can Enact Ordinances That Are Stricter Than the Smoke Free Air Act

By Andrew Gimigliano on 11/14/2017
Posted In Judge Gilson, Local Government Law, New Jersey Appellate Division

The New Jersey Appellate Division published an opinion today addressing whether a municipality can enact a public smoking ordinance with restrictions greater than those found in the New Jersey Smoke Free Air Act (“Act”).  The answer is yes.

In Sparroween, LLC v. Township of West Caldwell,* a local business, Cigar Emporium, challenged a local ordinance that restricted smoking in a tobacco retail establishment to two minutes for pre-purchase sampling.  Under the Act, a tobacco retail establishment is a business in which at least 51% of the revenue derives from the retail sale of tobacco products.  The Act specifically exempts properly registered tobacco retail establishments from its smoking restrictions.  In other words, the State law does not limit smoking in a tobacco retail establishment, but the local ordinance contained the additional restriction of limiting smoking to two minutes.

Three issues were addressed by this appeal:  (1) whether a local government can adopt an ordinance that is more restrictive than the Act; (2) whether the local ordinance was a de facto zoning ordinance because it changed the use of the property; and (3) whether the plaintiff should have been entitled to discovery before the action was dismissed.  The Township prevailed on all three issues.

Judge Gilson, writing for the majority, addressed each issue quickly and succinctly.  First, he noted that the Act supersedes all local ordinances governing smoking in indoor public spaces, with three exceptions.  “(1) where smoking is prohibited by municipal ordinance under authority of [N.J.S.A.] 40:48-1 or 40:48-2″; (2) where smoking is prohibited by ‘any other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire or protecting public health'”; and (3) ‘provisions of a municipal ordinance which provide restrictions on or prohibitions against smoking equivalent to, or greater than, those provided under this act.’  N.J.S.A. 26:3D-63.”  The panel concluded that the first and third exceptions applied without question because the ordinance was adopted under the police power to preserve public health and was more restrictive than the Act.

The Plaintiffs argued that the word “adopted” in the statute limited the three exceptions to only those ordinances that were on the books at the time the Act took effect.  The panel outright rejected this argument:  “The word ‘adopted,’ as used in the Smoke-Free Act plainly refers to existing laws, ordinances, rules and regulations, as well as those that may be adopted in the future.

The Plaintiffs also argued that the ordinance, which was adopted after Cigar Emporium received its approvals and opened for business, was a land use ordinance because it changed the use to a pre-existing, non-conforming use.  The panel gave this argument short shrift, noting that the ordinance was not a zoning ordinance; it was a valid health ordinance.  The Plaintiffs final argument, that discovery should have been granted, was also rejected out of hand.  The panel noted that the questions presented were purely legal in nature, and discovery would have been pointless.

The panel concluded that the Plaintiffs’ complaint failed to state a claim for relief and affirmed the trial court’s dismissal of the action.

* O’Toole Scrivo represented the Defendants-Respondents, and the author argued the cause before the Appellate Division