In a published decision issued November 14, a New Jersey appellate court upheld a municipal ordinance restricting indoor smoking at a retail tobacco establishment, which provided more stringent regulation than the State’s Smoke-Free Act, N.J.S.A. 26:3D-55 to -64.
Subsequent to a site plan approval granted to Cigar Emporium, the West Caldwell Board of Health passed an ordinance governing smoking inside tobacco retail establishments. The ordinance restricted indoor smoking to pre-purchase sampling for no more than 2 minutes. It also required operators of tobacco retail establishments to register with the Board of Health and to obtain a license from the health officer. West Caldwell subsequently issued summonses to Cigar Emporium for continuous smoking, and the plaintiff filed an order to show case seeking a declaration that the ordinance was void and illegal.
While the Smoke-Free Act generally prohibits smoking tobacco in indoor public places, tobacco retail establishments, cigar bars, and cigar lounges are exempt. The Act also does not restrict the amount of time a customer can smoke inside one of these exempt businesses. On appeal, the plaintiff argued that the Smoke-Free Act superseded and preempted municipal law and that West Caldwell did not have the authority to enact its more stringent, time-limited ordinance.
In rejecting the plaintiff’s preemption argument, the court noted although the Smoke-Free Act does supersede municipal ordinances, it contains an explicit exception allowing a municipality to create greater (but not lesser) restrictions on indoor smoking. In other words, New Jersey’s Smoke-Free Act establishes the regulatory floor for indoor smoking and West Caldwell was free to establish additional, more stringent rules.
Municipalities seeking to regulate indoor smoking at exempt businesses should thoroughly review the Smoke-Free Act before proceeding.
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