SPARROWEEN, LLC D/B/A CIGAR EMPORIUM, ET AL. VS. TOWNSHIP
A-4083-15T1
We hold that a municipal health ordinance that imposes time limitations on indoor smoking in a tobacco retail establishment is not superseded by the New Jersey Smoke-Free Air Act (the Smoke-Free Act), N.J.S.A. 26:3D-55 to -64. Appellants operated a cigar emporium where customers could purchase and smoke cigars and pipe tobacco. The store qualified as a "tobacco retail establishment" under the Smoke-Free Act. Thus, the Smoke-Free Act did not prohibit indoor smoking in such an exempt establishment.
The Township of West Caldwell, where the store operated, passed a health ordinance that limited indoor smoking to pre-purchase sampling not to exceed two minutes. Appellants challenged that ordinance arguing that the Smoke-Free Act superseded it. Appellants also argued that the ordinance was really a land use
ordinance that did not apply to their pre-existing non-conforming use.
The Smoke-Free Act states that it supersedes "any other statute, municipal ordinance and rule or regulation adopted pursuant to law concerning smoking in an indoor public place or workplace . . . ." The provision, however, identifies three exceptions, which include: (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." Here, the municipal ordinance was within the ambit of all three exceptions.
We also hold the ordinance is a valid municipal health ordinance and it is not a land use ordinance. Accordingly, we affirm the dismissal of appellants' action in lieu of prerogative writs, and the denial of their request to invalidate the municipal smoking ordinance.
