SPARROWEEN, LLC D/B/A CIGAR EMPORIUM VS. TOWNSHIPÂ OF WEST CALDWELL(L-1966-16, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4083-15T1
SPARROWEEN, LLC d/b/a
CIGAR EMPORIUM and RICHARD APPROVED FOR PUBLICATION
YANUZZI,
November 14, 2017
Plaintiffs-Appellants,
APPELLATE DIVISION
v.
TOWNSHIP OF WEST CALDWELL,
TOWNSHIP OF WEST CALDWELL
BOARD OF HEALTH and WILLIAM
WALLACE, INDIVIDUALLY AND
IN HIS CAPACITY AS HEALTH
OFFICER OF THE TOWNSHIP OF
WEST CALDWELL,
Defendants-Respondents.
_________________________________
Argued telephonically October 3, 2017 –
Decided November 14, 2017
Before Judges Reisner,1 Gilson, and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-1966-
16.
Steven J. Martino argued the cause for
appellants (Iacullo Martino, LLC, attorneys;
Mr. Martino, on the brief).
Andrew Gimigliano argued the cause for
respondents (O'Toole, Scrivo, Fernandez,
Weiner, Van Lieu, LLC, attorneys; Juan C.
1
Judge Reisner did not participate in oral argument. She joins
the opinion with the consent of the parties. R. 2:13-2(b).
Fernandez, of counsel; Anthony D. Capasso and
Michael Garcia, on the brief).
The opinion of the court was delivered by
GILSON, J.A.D.
Plaintiffs appeal from an April 18, 2016 order that dismissed
their prerogative writs action and denied their request to
invalidate a municipal smoking ordinance. Plaintiffs primarily
argue that the New Jersey Smoke-Free Air Act (the Smoke-Free Act),
N.J.S.A. 26:3D-55 to -64, supersedes the municipal ordinance. We
affirm because the ordinance is valid and is not superseded by the
Smoke-Free Act.
I.
Plaintiffs are Sparroween, LLC, d/b/a Cigar Emporium
(Sparroween) and Richard Yanuzzi, the sole owner of Sparroween
(collectively, plaintiffs). Since June 2015, Sparroween has
operated a tobacco retail store in West Caldwell.2 One-third of
the store consists of sale space for purchasing cigars, pipe
tobacco, and related accessories. The remainder of the store
consists of seating areas for customers.
2
At oral argument, counsel for the parties informed us that
Sparroween has ceased operating the store. Counsel for plaintiffs
also represented that the store might reopen if the ordinance was
invalidated.
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In early 2014, Sparroween submitted an application to the
West Caldwell Planning Board (the Planning Board) for site plan
and development approval to open a tobacco retail establishment.
The application stated that Sparroween's intent was to sell cigars,
pipe tobacco, and various accessories, and that the premises would
have seating areas where customers could smoke tobacco products
purchased from the store. The Planning Board forwarded plaintiffs'
application to other Township officials, including the Board of
Health and the Health Officer.
In response, the Health Officer submitted a memorandum to the
Planning Board and Sparroween, commenting on the application and
identifying certain "requirements" for the application (the
Memorandum). The Memorandum noted that for Sparroween to receive
a tobacco retail establishment waiver under the Smoke-Free Act,
plaintiffs would need to submit a notice of claim for exemption.
In the Memorandum, the Health Officer also suggested certain
conditions, including that: (1) the establishment be a "cash and
carry" business, "with the general purpose of purchasing
product[s] for off-premise[s] consumption[;]" and (2) "pre-
purchase sampling shall be limited to no more than 3 minutes prior
to making a multi-unit purchase from the [tobacco retail
establishment]."
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Thereafter, the Planning Board held a hearing on Sparroween's
application. At the hearing, the chairman of the Planning Board
informed Sparroween that if its application was approved, the
approval would only cover its use as a retail store and a lounge
for customers. Thus, the approval would not cover indoor smoking.
In response, representatives of Sparroween acknowledged that they
would be subject to regulatory requirements to get approval for
indoor smoking.
Following the hearing, the Planning Board approved
Sparroween's application, and on April 21, 2014, it issued a
resolution approving the application for "the retail sale of
[t]obacco products and accessories." The resolution was
conditioned on Sparroween complying "with all [f]ederal, state and
local laws, rules and regulations[.]" The resolution also noted
that Sparroween had read the recommendations of the Health Officer
set forth in the Memorandum.
Following receipt of its development and site plan approval,
Sparroween leased and renovated the premises. In June 2015,
Sparroween opened Cigar Emporium. In August 2015, the Health
Officer issued a notice of violation to Sparroween for failing to
file a claim for exemption of a tobacco retail establishment under
the Smoke-Free Act. Sparroween eventually submitted the claim for
exemption on August 31, 2015.
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In early December 2015, the West Caldwell Board of Health
passed an ordinance governing smoking inside tobacco retail
establishments (the Smoking Ordinance). Under that ordinance,
smoking was restricted to "pre-purchase sampling" and was limited
to "no more than 2 minutes[.]" The ordinance also required
operators of tobacco retail establishments to register with the
Board of Health and to obtain a license from the Township's Health
Officer.
Later that month, on December 24, 2015, the Health Officer
sent Sparroween a notice of violation of the Smoking Ordinance for
allegedly allowing "continuous smoking" inside Cigar Emporium.
The notice directed Sparroween to cease allowing smoking and stated
that failure to comply would result in the issuance of summonses
and the imposition of fines. Counsel for Sparroween contacted the
Board of Health, but the parties did not resolve their differences.
Thereafter, on March 19, 2016, the Health Officer came to
Cigar Emporium, found patrons smoking, and issued four summonses
to Sparroween for violations of the Smoking Ordinance.3 In
response, on March 21, 2016, plaintiffs filed an order to show
3
Plaintiffs alleged that the Health Officer also issued summonses
to five customers who were found smoking inside Cigar Emporium.
The individual customers, however, were not parties to the matter
in the trial court and there is no issue concerning the individual
customers before us on this appeal.
5 A-4083-15T1
cause seeking temporary restraints against the enforcement of the
Smoking Ordinance. Plaintiffs also filed a verified complaint for
declaratory judgment and in lieu of prerogative writs, naming as
defendants the Township of West Caldwell, the Township Board of
Health, and the Township Health Officer. The complaint sought a
declaration that the Smoking Ordinance was illegal and void.
The trial court initially granted the temporary restraints
and set a return date for a hearing. Defendants filed opposition
to the restraints, and a motion to dismiss the complaint. After
hearing oral argument on April 12, 2016, the trial court entered
an order vacating the temporary restraints and dismissing
plaintiffs' complaint with prejudice. The court explained the
reasons for its ruling in a cogent decision read into the record.
In short, the court held that the Smoke-Free Act did not supersede
the Smoking Ordinance. The court also held that the Smoking
Ordinance was a validly enacted health ordinance and plaintiffs
were not entitled to declaratory relief.
II.
On appeal, plaintiffs make three arguments, contending that:
(1) the Smoking Ordinance is not valid because it is superseded
by the Smoke-Free Act; (2) alternatively, the Smoking Ordinance
operates as a land use ordinance and is not applicable to
plaintiffs' non-conforming pre-existing use; and (3) the trial
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court erred in dismissing their complaint before allowing
discovery. We are not persuaded by any of these arguments, and
we affirm the trial court's April 18, 2016 order.
A. The Smoke-Free Act Does Not Supersede the West Caldwell
Smoking Ordinance
The primary issue on appeal is whether the Smoking Ordinance
is superseded or preempted by the Smoke-Free Act. That issue is
a question of law, which we review de novo. McGovern v. Rutgers,
211 N.J. 94, 108 (2012).
The Smoke-Free Act generally prohibits smoking of tobacco in
an indoor public place or workplace. N.J.S.A. 26:3D-58. An indoor
public place includes a "structurally enclosed place of business,
commerce or other service-related activity," including a for-
profit privately owned structure, "which is generally accessible
to the public . . . ." N.J.S.A. 26:3D-57.
In enacting the Smoke-Free Act, the Legislature found that
tobacco is a leading cause of preventable disease and death in New
Jersey, tobacco smoke constitutes a substantial health hazard to
the non-smoking "majority" of the public, and it was in the
public's interest to prohibit smoking tobacco products in indoor
places of public access. N.J.S.A. 26:3D-56.
The Smoke-Free Act allows for certain exemptions and states
that its prohibitions do not apply to any "tobacco retail
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establishment[,]" "cigar bar[,]" "cigar lounge[,]" or other
identified places. N.J.S.A. 26:3D-59. The Smoke-Free Act then
defines "tobacco retail establishment", "cigar bar", and "cigar
lounge". N.J.S.A. 26:3D-57.
The Smoke-Free Act also supersedes other statutes, municipal
ordinances, rules, or regulations concerning smoking in an indoor
public place or workplace, with certain exceptions. N.J.S.A.
26:3D-63. Specifically, the Smoke-Free Act states:
The provisions of this act shall supersede any
other statute, municipal ordinance and rule
or regulation adopted pursuant to law
concerning smoking in an indoor public place
or workplace, except where smoking is
prohibited by municipal ordinance under
authority of [N.J.S.A.] 40:48-1 or 40:48-2 or
by any other statute or regulation adopted
pursuant to law for purposes of protecting
life and property from fire or protecting
public health, and except for those provisions
of a municipal ordinance which provide
restrictions on or prohibitions against
smoking equivalent to, or greater than, those
provided under this act.
[Ibid.]
Plaintiffs rely on N.J.S.A. 26:3D-63 and argue that it
supersedes the Smoking Ordinance. In that regard, plaintiffs
contend that the Smoke-Free Act allows for their operation of a
tobacco retail establishment and does not limit the amount of time
that customers can smoke in the establishment. Plaintiffs then
contend that the superseding provision of the Smoke-Free Act
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grandfathered municipal ordinances that pre-dated the 2006
enactment of the Smoke-Free Act, but prohibited all future
ordinances that are more restrictive. We disagree with this
suggested interpretation because the plain language of the Smoke-
Free Act does not support such a reading.
West Caldwell's Smoking Ordinance requires tobacco retail
establishments, claiming to be exempt from the Smoke-Free Act, to
file an annual notice with the Board of Health and to be licensed.
The Smoking Ordinance also places restrictions on indoor smoking.
Specifically, the Smoking Ordinance limits smoking to pre-purchase
sampling not to exceed two minutes. These provisions are more
restrictive than the Smoke-Free Act. Accordingly, the Smoking
Ordinance is only valid if it is not superseded by the Smoke-Free
Act.
The starting place for statutory interpretation is the Act's
plain language. N. Jersey Media Grp., Inc. v. Twp. of Lyndhurst,
229 N.J. 541, 557 (2017). Here, the controlling provision is the
superseding section of the Smoke-Free Act, N.J.S.A. 26:3D-63. That
provision states that the Smoke-Free Act 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 then identifies three exceptions
when the Smoke-Free Act does not supersede such laws. The
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exceptions are: (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.
Applying the plain language of the superseding provision of
the Smoke-Free Act, the Smoking Ordinance arguably falls under all
three exceptions, but clearly falls under the first and third
exceptions. As to the first exception, the West Caldwell Board
of Health adopted the Smoking 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 focus on the word "adopted" and argue that such
language limits the applicability of the exceptions to previously
adopted laws, municipal ordinances, rules and regulations.
Reading the plain language of the superseding provision does not
support such an interpretation. The word "adopted", as used in
the Smoke-Free Act, plainly refers to existing laws, ordinances,
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rules and regulations, as well as those that may be adopted in the
future.
B. The Smoking Ordinance Is Not a Land Use Ordinance
Plaintiffs next argue that if the Smoking Ordinance is valid,
it is effectively a land use ordinance and because it was adopted
after Cigar Emporium opened, the Emporium is a pre-existing non-
conforming use exempt from the prohibitions of the Smoking
Ordinance. We reject this argument because the Smoking Ordinance
was a validly adopted health ordinance.
Municipal health boards are granted the authority to enact
and amend health ordinances. N.J.S.A. 26:3-64. Accordingly, a
municipality may pass an ordinance or regulation "as it may deem
necessary and proper . . . for the preservation of public health,
safety and welfare of the municipality and its inhabitants . . .
." N.J.S.A. 40:48-2. See LDM, Inc. v. Princeton Reg. Health
Comm'n, 336 N.J. Super. 277, 291 (App. Div. 2000) (citing State
v. Crawley, 90 N.J. 241, 247 (1982)) (explaining that
municipalities may enact health ordinances that are reasonably
related to a legitimate object of public health, safety, or
welfare).
The Smoking Ordinance, like all municipal ordinances, is
entitled to a presumption of validity. Grabowsky v. Twp. of
Montclair, 221 N.J. 536, 551 (2015). Here, the Smoking Ordinance
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was enacted by the West Caldwell Board of Health in accordance
with its authority under N.J.S.A. 26:3-64 and N.J.S.A. 40:48-2.
The Smoking Ordinance is rationally related to the Township's
legitimate interest in protecting the health and welfare of its
citizens by limiting their exposure to second-hand smoke.
Additionally, many ordinances, including health ordinances, touch
on the use of land, but are not within the planning and zoning
concerns of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1
to -17. "[S]uch ordinances are enacted pursuant to the general
police power and apply to everyone." See, e.g., N.J. Shore
Builders Ass'n v. Twp. of Jackson, 199 N.J. 38, 53-54 (2009)
(applying the rational basis test to determine the validity of a
municipal ordinance adopted pursuant to N.J.S.A. 40:48-2, and
holding that the ordinance did not fall within the purview of the
MLUL despite affecting the use of land). Consequently, the Smoking
Ordinance is a valid municipal health ordinance and it is not a
land use ordinance.
C. Plaintiffs' Complaint Was Properly Dismissed
We use a de novo standard when reviewing an order dismissing
a complaint for failure to state a claim. When reviewing a motion
to dismiss under Rule 4:6-2(e), we assume that the allegations in
the pleadings are true and afford the pleader all reasonable
inferences. Seidenberg v. Summit Bank, 348 N.J. Super. 243, 249-
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50 (App. Div. 2002). "Where, however, it is clear that the
complaint states no basis for relief and that discovery would not
provide one, dismissal of the complaint is appropriate." J.D. ex
rel. Scipio-Derrick v. Davy, 415 N.J. Super. 375, 397 (App. Div.
2010) (quoting Cty. of Warren v. State, 409 N.J. Super. 495, 503
(App. Div. 2009), certif. denied, 201 N.J. 153, cert. denied sub
nom., 561 U.S. 1026, 130 S. Ct. 3508, 177 L. Ed. 2d 1092 (2010)).
Here, plaintiffs' complaint alleged four causes of action and
sought two forms of relief: (1) a declaration that the Smoking
Ordinance was illegal and void; and (2) a damages award holding
the Health Officer liable for his alleged wrongful and malicious
interference with plaintiffs' business. Because we have held as
a matter of law that the Smoking Ordinance was valid, neither of
these forms of relief could be granted. Moreover, there was no
need for discovery since the controlling issue was an issue of
law.
Affirmed.
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