Authority for Smokefree Public Places
(arguments that there is no preemption)

Karen Blumenfeld, Esq.
908 273-3171

March 2004

I. Purpose of this document

The intent of this document is to provide information to interested individuals and organizations. Any municipality that is considering the enactment of a policy or local ordinance is encouraged to contact its municipal attorney for a legal review of any proposed ordinance to ensure conformity with local, state, and federal laws. The information in this document and this document taken as a whole are not intended to serve as legal advice.

II. New Jersey Constitution, article IV, section 7, paragraph 11 requires liberal construction of N.J.S.A. 26:3E-10(b)

The New Jersey Constitution, article IV, section VII, paragraph 11, states:

The provisions of this Constitution and of any law concerning municipal corporations formed for local government, or concerning counties, shall be liberally construed in their favor [emphasis added]. The powers of counties and such municipal corporations shall include not only those granted in express terms but also those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or law.

 

New Jersey Statute N.J.S.A. 26:3E-10(b) states that smoking in restaurants may be prohibited by municipal ordinance under authority of R.S. 40:48-1 and 40:48-2 or by any other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire. If a liberal construction is made, N.J.S.A. 26:3E-10(b) would allow a municipality to enact an ordinance to prohibit smoking in restaurants under any one of three separate forms of authority:

1. N.J.S.A. 40:48-1
2. N.J.S.A. 40:48-2
3. any other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire.

Liberal construction would also allow the municipality to apply N.J.S.A. 40:48-1 and 40:48-2 liberally, and not only for the purposes of protecting life and property from fire. In fact, N.J.S.A. explicitly states "prohibited by municipal ordinance under authority of R.S. 40:48-1 and 40:48-2 or by any other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire." According to Black's Law Dictionary 987 (5th ed. 1979), "or" is defined as "a disjunctive participle used to express an alternative or to give a choice of one among two or more things." Thus, local governments are authorized to regulate smoking under either N.J.S.A. 40:48-1, N.J.S.A. 40:48-2 or "by any other statute or regulation adopted pursuant to law for the purposes of protecting life and property from fire."

A. Legislative history of N.J.S.A. 26:3E-10(b) does not show an intent to narrowly interpret the exemption to fire protection only

"N.J. Const., Article IV, Section VII, paragraph 11 establishes a presumption of validity of ordinances enacted by municipalities, and therefore a finding of pre-emption must be clear." Coast Cigarette Sales et. al. v. City of Long Branch, et. al. 121 N.J.Super. 439, 445 (Law Div. 1972), citing to Kennedy v. City of Newark, 29 N.J. 178, 187 (1959).

"Absent an express exclusion from the field by the State the question of preemption must be determined by ascertaining the legislative intention on the fact of each case." Coast v. Long Branch at 445, citing to State v. Ulesky, 54 N.J. 26, 29 (1969). "Absent a showing of an intent to totally pre-empt, a municipality pursuant to its delegated powers can deal with specific local problems by expanding control in that area so long as there is no conflict with the legislative proscription." Coast v. Long Branch at 446, citing to Fred v. Mayor and Council, Old Tappan Borough, 10 N.J. 515, 521-522 (1952); Chester v. Panicucci, 116 N.J. Super. 229, 235 (App.Div. 1971), aff'd 62 N.J. 94 (1972).

The legislative history on N.J.S.A. 26:3E-10(b) does not show a clear intent to totally pre-empt municipalities from enacting smokefree restaurant ordinances. Rather, N.J.S.A. 26:3E-10(b) speaks to the fact that the legislature did not intend to pre-empt municipalities; the law lists three separate grounds that allow communities to pass smokefree restaurant ordinances: N.J.S.A. 40:48-1, 40:48-2, or any other statute or regulation to protect life and property from fire.

If a question exists about the interpretation of the word "or" in N.J.S.A. 26:3E-10(b) as to whether it is inclusive or exclusive, then the legislative intent of N.J.S.A. 26:3E-10(b) must be ascertained. A review of the legislative history for N.J.S.A. 26:3E-19 shows no indication that the legislature intended to narrowly construe N.J.S.A. 26:3e-10(b) by only allowing for an exemption based solely on protecting against fire. The legislative history is silent on this matter. Therefore, this exemption should be construed broadly according to the New Jersey Constitution, art. IV, sect. VII, para. 11, which would allow for the three separate grounds for the exemption to preemption listed above. This reasoning would allow a municipality, such as Princeton, to deal with its specific local health problem.

B. Dealing with local problems

In C.I.C. Corp., Id. at 6, the Appellate Division found that "it is a matter of local concern" to protect minors within a town from the perceived dangers of early smoking and illegal cigarette sales. The court reasoned:

Preliminarily, concern over minors purchasing cigarettes is, assuredly, of State-wide proportion, as reflected by N.J.S.A. 2A:170-51 and N.J.S.A. 18A:36-32. But, like the control of Sunday closings or gaming devices, it is also very much a matter of local concern, responses to which could vary locally in both nature and intensity and upon which municipal action need not be "mischievous" or "intolerable," but rather useful. Citing to Mack Paramus Co. v. Mayor of the Borough of Paramus, 103 N.J. 564, 577 (1986).

Case law suppports municipal action for matters of local concern, especially when addressing smoking by minors. This lends credence to local action's being useful for similar matters of local concern, namely, secondhand smoke exposure in workplaces and public places.

C. Local ordinances effectuate a state statute and complement its primary purpose

The Appellate Division in Coast concludes that the local ordinance actually "effectuates the statutes and is complementary to their primary purpose." Coast v. East Brunswick at 11. The Appellate Division added that "[w]hile restrictions upon minors of access to cigarettes can be the subject of uniform statewide regulation, sale of cigarettes to minors within the borders of a municipality is also a matter of municipal concern that can readily be regulated on a local basis. Such regulation does not conflict or interfere with any existing state laws. There is no preemption." Id at 12.

Since the New Jersey Constitution, art. IV, sect. VII, para. 11 mandates a broad construction of the exemption language in N.J.S.A. 26:3E-10(b), Princeton's ordinance actually effectuated and complemented N.J.S.A. 26:3E-10(b). Princeton was not alone in enacting a local ordinance that effectuates a state statute and complements its primary purpose; other examples of local ordinances that vary town-by-town include "dry" towns (no liquor licenses) and towns with "blue" laws (stores closed on Sundays).

D. In pari materia: other state laws on smoking restrictions have similar preambles to N.J.S.A. 26:3E-1 et. seq., and towns enacted stronger ordinances

When interpreting legislative history, several factors need to be kept in mind. When reading the actual language in question, "a court must not be guided by a single sentence or member of a sentence but must look to the provisions of the whole act and its object and policy, as well as to statutes in pari materia." Coast v. Long Branch at 447, citing to Brewer v. Porch, 53 N.J. 167, 174 (1969). In pari materia means "on like subject matter…. In the construction of a particular statute, or in the interpretation of any of its provisions, all acts relating to the same subject, or having the same general purpose, should be read in connection with it, as together constituting one law." Law Dictionary, Gifis, Steven H., Barron's Educational Series, Inc. (1975), p. 105.

Not to be guided by the single sentence enumerated in N.J.S.A. 26:3E-10(b), the general purpose of N.J.S.A. 26:3E-7 et. seq. is enunciated in its preamble: "in addition to the deleterious effects upon smokers, tobacco smoke is: (1) at least an annoyance and a nuisance to a substantial percentage of the nonsmoking public; and (2) a substantial health hazard to a smaller segment of the nonsmoking public. Therefore, the Legislature finds that it is in the interest of the public health to encourage restaurants to establish nonsmoking areas." N.J.S.A. 26:3E-7. It is clear that the Legislature is generally concerned about hazardous effects of secondhand smoke to the public in restaurants. This preamble does not explicitly state or imply that a town is prohibited from providing more protection.

Other state laws that regulate smoking enunciate a similar purpose, which is to protect nonsmokers from secondhand smoke, and municipalities have enacted stricter ordinances. For example, N.J.S.A. 26:3D-46 et. seq. regulates smoking in governmental offices. Its preamble gives priority to a smokefree environment rather than smoking: "The right to breathe clean air supercedes the right to smoke." N.J.S.A. 25:3D-46. This statute shows the intent of the legislature to permit municipalities to protect both employees and the public from secondhand smoke in governmental offices. Many New Jersey municipalities have enacted local laws to regulate smoking in governmental buildings more comprehensively than state statute, relying on the language in N.J.S.A. 26:3D-49 which is identical to the language in the restaurant statute N.J.S.A. 25:3E-10(b). And, in fact, N.J.S.A. 26:3E-10(b) explicitly enumerates the same three exceptions that allow a municipality to prohibit smoking in restaurants, in that smoking in governmental buildings may be "prohibited by municipal ordinance under authority of R.S. 40:48-1 and 40:48-2 or by any other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire." Municipalities that relied on this statutory language expressed the concern of exposure to seconhand smoke as their primary reason for more strictly regulating smoking in governmental buildings, rather than citing protecting life and property from fire. The towns relied upon the broad police powers given under the authority of N.J.S.A. 40:48-2 to protect and preserve the public health, safety and welfare of its employees and town inhabitants. None of these ordinances has been challenged under a preemption claim. By applying in pari materia, or "like subject matter", it is clear that the authority given to towns under N.J.S.A. 40:48-2 should be construed liberally.

E. N.J.S.A. 40:48-1: General purposes of ordinances

A liberal construction of N.J.S.A. 26:3E-10(b) means that each of the three separate grounds for exemptions must be examined: NJ.S.A. 40:48-1, 40:48-2, and protecting life and property from fire.

First, N.J.S.A. 26:3E-10(b) permits a municipal ordinance on smoking in restaurants under the authority of N.J.S.A 40:48-1, which states that the governing body of every municipality may make, amend, repeal and enforce ordinances to: ... regulate the use, storage, sale and disposal of inflammable or combustible materials, and to provide for the protection of life and property from fire, explosions and other dangers.…"

When liberally construed, "other dangers" can be interpreted to relate to the dangers of secondhand smoke. These dangers, including the danger of secondhand smoke to children, have been described by U.S. Surgeons General, the Centers for Disease Control, and the EPA. The May 15, 2000 National Institutes of Health Report on Carcinogens, 9th Edition classifies environmental tobacco smoke as a "known carcinogen".

F. N.J.S.A. 40:48-2: Necessary and proper

Second, according to N.J.S.A. 26:3E-10, N.J.S.A. 40:48-2 can provide the authority to enact a municipal ordinance for smokefree restaurants:

Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this state or of the United States, as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants, as may be necessary to carry into effect the powers and duties conferred and imposed by this subtitle or by any law.

This statutory language provides for a municipality to enact a smokefree restaurant ordinance if it finds that it is necessary and proper to do so to protect persons and property and to preserve the public health, safety and welfare of its municipality and inhabitants. For example, a municipality may conclude that it is necessary and proper to protect against the health hazards of secondhand smoke in restaurants, and enact an ordinance for that protection. On May 15, 2000 the National Institutes Health (part of the U.S. Department of Health and Human Services) released its Report on Carcinogens, 9th Edition that, for the first time, classifies environmental tobacco smoke as a "known carcinogen".

Case law exists to support liberal construction and municipal authority under N.J.S.A. 40:48-2. In Del Vecchio v. Mayor and Township Committee of the Township of South Hackensack, the Appellate Division ruled in favor of the town's enactment of an ordinance that related to the licensing and regulation of restaurants and other eating places. 49 N.J. Super. 44, 49 (App. Div. 1958).

This statute was also applied to tobacco control with cigarette vending machines. In C.I.C. Corp. v. Township of East Brunswick, 266 N.J. Super.1, 6 (App. Div. 1993), aff'd 135 N.J. 121 (1994), the Appellate Division found, and the New Jersey Supreme Court later affirmed, that "[m]unicipalities are broadly empowered to enact ordinances…", citing to N.J.S.A. 40:48-2, and that "these powers are liberally construed", citing to the New Jersey Constitution, article IV, section 7, paragraph 11. The Appellate Division and Supreme Court held that for a state law to preempt a local law, it is not enough that the state legislature legislated on a particular subject. Rather, the question is whether the legislature intended its action to preclude local governments from exercising their delegated police power.

The East Brunswick case relied on several factors to determine if the local ordinance was preempted by the state statute:

1. Does the ordinance conflict with state law?
2. Does the state law intend to be exclusive in the field?
3. Does the subject matter reflect a need for uniformity?
4. Is the state scheme so pervasive or comprehensive that it precludes coexistence of municipal regulations?
5. Does the ordinance stand as an obstacle to accomplishing the full purposes and objectives of the legislature?

Furthermore, the New Jersey Supreme Court, in Chester v. Panicucci, 62 N.J. 94, 102 (1972), held that a municipality can enact more stringent regulation in a field so long as such local regulation is not unreasonable and does not conflict with state law. The court found that the state statute was for "a statewide policy of minimum regulation", and that "municipal action is not foreclosed." Id. Applying this case to that at hand, when liberally construed, N.J.S.A. 26:3E-10(b) could be seen as a statewide policy of minimum regulation for smoking in restaurants, thus not foreclosing stronger municipal action.

G. Protecting life and property from fire

N.J.S.A 26:3E-10(b) also permits regulating smoking in restaurants "…or by any other statute or regulation adopted pursuant to law for purposes of protecting life and property from fire." Smoking is the number one preventable cause of fires in the United States. To help prevent these fires from occurring in restaurants and other public places, a municipality may enact an ordinance under N.J.S.A. 26:3E-10(b) to protect life and property.

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