The Smoke-Free Act Does Not Preempt A Municipal Ordinance Limiting Smoking in Retail Tobacco Establishments

Sparroween, LLC v. Township of West Caldwell, ___ N.J. Super. ___ (App. Div. 2017).  Plaintiffs operated the Cigar Emporium in West Caldwell.  In that business, they sell tobacco products, but they also make tobacco products available to be smoked on the premises.  After plaintiffs had obtained development approvals from the municipal Planning Board, the Township’s Board of Health, acting under its power to preserve public health, adopted an ordinance that governed smoking within retail businesses that sell tobacco.  The ordinance restricted on-premises smoking to no more than two minutes of “pre-purchase sampling.”

After plaintiffs were cited several times for violating that ordinance by allowing other smoking within their premises, plaintiffs sued to enjoin enforcement of the ordinance, asserting that the ordinance was preempted by the Smoke-Free Act, N.J.S.A. 26:3D-55 to -64.  The Law Division dismissed the complaint for failure to state a claim, finding no preemption.  Plaintiffs appealed, but today the Appellate Division affirmed, applying de novo review.  Judge Gilson wrote the panel’s opinion.

Judge Gilson began with the plain language of the Smoke-Free Act.  That statute states that it supersedes municipal ordinances concerning smoking in an indoor public place or workplace.  But there are 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 all three exceptions might apply, but that the first and third ones unquestionably did.  The first exception applied because the Board of Health had adopted the ordinance “pursuant to its authority under N.J.S.A. 40:48-2, which allows municipalities to enact ordinances for the preservation of public health.  As to the third exception, it is uncontested that the Smoking Ordinance imposes greater restrictions than the Smoke-Free Act.”

Plaintiffs argued that “adopted” limited the exceptions to previously adopted ordinances and the like.  Judge Gilson was not impressed.  “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.”

Plaintiffs also contended that the ordinance was a land use regulation and that since it was adopted only after plaintiffs’ establishment opened for business, their operation was protected as a pre-existing, non-conforming use.  Judge Gilson rejected the argument that this was a land use ordinance.  Instead, it was a validly adopted health ordinance.

Finally, plaintiffs asserted that they should have been afforded discovery.  But Judge Gilson found that the controlling issue was one of law, as to which discovery would not have made a difference.  “Where, however, it is clear that complaint states no basis for relief and that discovery would not provide one, dismissal of the complaint is appropriate.”

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