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New Jersey Goes Smoke Free: The Smoke Free Air Act Enforcement Provisions
By Megan M. Schwartz
In April 15, 2006, indoor public places and workplaces across the State of New Jersey became smoke free.
New Jersey's Smoke-Free Air Act (the “Act”) applies just about everywhere, including, but not limited to:
restaurants, bars, clubs, bowling alleys, offices, factories, commercial and governmental buildings, hotels,
malls, stores, private clubs and public areas in private buildings. Compliance is the responsibility of the
person having control of an indoor public place or place of employment under the Act. Enforcement of the Act
also will be achieved by a complaint system. Employees and the public may report violations of the Act to
their local health departments. Thus, regulated businesses and municipalities must be prepared to enforce the
Act or risk fines for failing to comply.
The Act itself does contain enforcement provisions as set forth in
N.J.S.A. 26:3D-62. Subsection (a) provides that the person having control of an indoor public place or
workplace shall order any person smoking in violation of this Act to comply with the provisions of this Act.
Further, a person, after being ordered to comply, who smokes in violation of this Act is subject to a fine of not
less than $250 for the first offense, $500 for the second offense and $1,000 for each subsequent offense. Thus,
as set forth above, those persons having control of an indoor public place or workplace (e.g. bar owners,
managers, workplace supervisors) will be responsible for ordering violators to stop smoking. If a person does not
stop smoking after an order, the bar owner, manager, workplace supervisor, etc. may contact the local police to
write a ticket/summons for the violation.
Likewise, under subsection (b) of the Act, the Department of Health and Senior Services (“DHSS”) or the local
board of health, upon written complaint or having reason to suspect violations, shall have the power to:
(1) advise,in writing, the person having control of a public place or workplace, that violations are or may
be occurring and (2) order appropriate action be taken. Any person receiving such notice that fails or refuses to
comply will be subject to a fine.
Penalties collected for violations of the Act will either be remitted to the State or the municipality
depending on who is the plaintiff. If the plaintiff is DHSS, the penalty recovered shall be paid into the
State treasury. If the plaintiff is the local board of health, the penalty shall be paid into the
municipality’s treasury wherein the violation occurred. Moreover, such penalties shall be the only civil
remedy for violations of the Act. No private right of action is available against a party for failure to
comply with the Act.
DHSS Draft Rules and Regulations
In May of 2006, DHSS filed draft regulations with the Office of Administrative Law regarding the Act. In addition,
DHSS has published a sample sign to be hung in all affected places.
The signs may be downloaded from DHSS’ website. Specifically, the Act requires that a “No Smoking” sign be prominently
posted at every public entrance and properly maintained where smoking is prohibited.
These signs must state that violators may be fined.
Most significantly, the draft regulations did not include a proposal that would have extended New Jersey’s
ban on indoor smoking to prohibit people from smoking within 25 feet of restaurants, taverns and other
businesses. The so-called “25-foot rule” would have all but extinguished plans by restaurants and taverns to
create outdoor patios or decks where customers could smoke. In fact, DHSS reassessed the draft guideline
establishing a minimum setback of 25 feet from openings to an indoor public place or workplace. The revised
notice of proposal would instead require owners and operators to establish site-specific conditions for
smoking in exterior areas of their establishments appropriate to their particular circumstances and
environments to ensure that smoke does not enter nonsmoking areas of such establishments.
Local municipal and county governments would retain authority pursuant to N.J.S.A. 26:3D-63 to
articulate conditions for smoking in exterior areas, such as minimum distance setbacks or “buffer zones,”
provided those conditions establish restrictions on or prohibitions against smoking equivalent to, or greater
than, those provided under the Act and the proposed new rules.
Conclusion
Affected businesses and municipalities armed with the above knowledge can ensure they are proactively
enforcing New Jersey’s Smoke Free Air Act. Hill Wallack LLP’s Administrative Law/Government Procurement and
Municipal Law Practice Groups are experienced and knowledgeable in representing businesses and
municipalities concerning administrative compliance issues.
Megan M. Schwartz is an associate in the
Administrative Law/Govern-ment Procurement Practice Group of Hill Wallack LLP. She
concentrates her practice in Administrative Law including Public Procurement with a particular emphasis
on administrative, environmental and regulatory compliance.
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