Standard of Review
An Appellate Law Blog

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

Split Decision May Send Marijuana Case to the Supreme Court

By Andrew Gimigliano on 10/31/2017
Posted In Administrative Agency Action, Appeal as of Right, Judge Espinosa, Judge Guadagno, Justice Clifford, New Jersey Appellate Division

In a split decision, Kadonsky v. Lee, ___ N.J. Super. ___ (App. Div 2017),  the New Jersey Appellate Division tackled the issue of whether the Director of the New Jersey Division of Consumer Affairs may reschedule marijuana from a schedule I controlled substance to a schedule IV or V controlled substance under the Controlled Dangerous Substances Act, N.J.S.A. 24:21-1 to -56.

The plaintiff, who is serving a life sentence as a result of pleading guilty under the “drug kingpin” statute, N.J.S.A. 2C:35-3, petitioned the Director to reschedule marijuana, arguing that it should not be a Schedule I drug because “marijuana no longer satisfied one of the requirements for inclusion in Schedule I, that the substance ‘has no accepted medical use in treatment.’  N.J.S.A. 24:21-5(a).”  The plaintiff pointed to the Legislature’s passage of the New Jersey Compassionate Use Medical Marijuana Act (“CUMMA”), N.J.S.A. 24:6I-1 to -16, to support his argument that medical marijuana indeed has “a beneficial use . . . in treating or alleviating the pain or other symptoms associated with certain debilitating medical conditions.”

The Director denied the petition for several reasons.  The Director found “no indication that, in passing CUMMA, the Legislature intended ‘to treat marijuana similar or consistent with substances listed in Schedules II-V,” and he noted that state Department of Health and the Board of Medical Examiners have not interpreted CUMMA as rescheduling or permitting the rescheduling of marijuana.  The Director also concluded that federal law barred the rescheduling and that New Jersey was required to follow federal schedules.

The Plaintiff appealed the Director’s determination, and the Appellate Division granted leave to appear as amicus curiae on behalf of a minor child who takes medical marijuana as part of a regimen to treat seizures.

Writing for the majority, Judge Guadagno (joined by Judge Messano) determined that the Director erred in denying the petition.  Of interest to the Supreme Court (should this case reach it) may be the majority’s implication of State v. Tate, 102 N.J. 64 (1986).  In Tate, the Court rejected a defendant’s argument that his use of medical marijuana was a “medical necessity.”  Justice Clifford, writing for a divided Court, noted that the Legislature had classified marijuana as a Schedule I drug, which signaled that it has “no accepted medical use in treatment.”

The majority in Kadonsky, however, noted that the Court left wiggle room:  “Justice Clifford also observed that the Legislature ‘demonstrated foresight by leaving room for the possibility that scientific developments and advances in knowledge could ultimately render marijuana’s Schedule I classification inappropriate.'”  The majority further noted that Justice Clifford suggested marijuana could be rescheduled in the future “giving consideration to . . . current scientific knowledge.”

From the majority’s vantage point, that future may be now:  “[A]ny argument suggesting [marijuana has no medical use in treatment] in the post-CUMMA era strains credulity beyond acceptable boundaries.”  The majority did not go so far as to mandate reclassification but rather remanded for further proceedings.

In dissent, Judge Espinosa concluded the Director acted appropriately.  Of particular importance to Judge Espinosa was the “unambiguous language of N.J.S.A. 24:21-3(c) that the Director adhere to federal schedules.”  Judge Espinosa therefore concluded the Director’s decision “must be sustained because there is no ‘clear showing that it is arbitrary, capricious, or unreasonable or that it lacks fair support in the record.'”

The Supreme Court of New Jersey may now have the final say.  As a result of the split decision, this case likely is headed to the Court on an appeal as of right.

On the other hand, if, as some assume, marijuana becomes legal in New Jersey in the not too distant future, this issue may be moot before the Court can take it up.