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Cigar Emporium loses appeal tied to New Jersey township smoking ordinance

By Carrie Salls | Dec 6, 2017

TRENTON, N.J. (Legal Newsline) – Sparroween LLC, which does business as Cigar Emporium, and Richard Yanuzzi lost their fight against the Township of West Caldwell's municipal smoking ordinance when the Superior Court of New Jersey Appellate Division upheld a lower court ruling in a Nov. 14 opinion.

Sparroween and Yanuzzi appealed to the appellate court after the Superior Court of New Jersey, Law Division, Essex County “dismissed their prerogative writs action and denied their request to invalidate a municipal smoking ordinance” in an April 18, 2016, order, according to the appellate court opinion. 

The action was based on the plaintiffs’ argument that the New Jersey Smoke-Free Air Act takes precedent over the township’s ordinance.

Richard Yanuzzi | New Jersey Department of Law & Public Safety

According to the appellate court opinion, Sparroween’s issues with the township began after it applied to the West Caldwell planning board in 2014 to open a store where customers could purchase and smoke tobacco products.

Following instructions from the township’s board of health that said the amount of time for indoor smoking at the store would be limited to three minutes before the purchase of tobacco products and that notified Sparroween that it would need to secure a “tobacco retail establishment waiver under the Smoke-Free Act,” the appellate court opinion said the planning board approved the plaintiff’s opening of an establishment of a “retail store and a lounge for customers.”

After Cigar Emporium was opened in June 2015, the appellate court said the township’s health officer cited the company for “failing to file a claim for exemption of a tobacco retail establishment under the Smoke-Free Act.”

The opinion said the West Caldwell Board of Health passed its own smoking ordinance in December 2015, limiting indoor smoking to “pre-purchase sampling” for a maximum of 2 minutes. The ordinance also requires store owners to obtain a license from the township to allow smoking under the specified conditions.

On Dec. 24, 2015, the appellate court opinion said Sparroween was cited by the health officer “for allegedly allowing ‘continuous smoking’ inside Cigar Emporium.” The notice ordered Sparroween to stop customers from smoking at the store.

The health officer issued summonses to Sparroween following a March 19, 2016, inspection of Cigar Emporium, the appellate court opinion said. The plaintiffs then filed a complaint asking the court to rule that “the smoking ordinance was illegal and void.”

In response, the lower court ruled “that the Smoke-Free Act did not supersede the smoking ordinance,” according to the appellate court opinion. “The court also held that the smoking ordinance was a validly enacted health ordinance.”

The appellate court said it agreed that “the smoking ordinance was valid.”

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Superior Court of New Jersey Appellate Divison