TRENTON-A partisan bill sponsored by New Jersey Democrats has surfaced again in the New Jersey Senate by Senate President Steve Sweeney and Monmouth County Senator Vin Gopal last week.

During Governor Chris Christie’s tenure, he vetoed similar bills, declaring each town shall make their own laws regarding smoking on the beach.

Fines for smoking on the beach would start at $250 and increase up to $1,000.

According to the Star Ledger, approximately one dozen shore towns prohibit smoking on their beaches including North Wildwood, Asbury Park, Point Pleasant, Barnegat Light, Beach Haven, Belmar, Cape May Point, Harvey Cedars, Long Beach Township, Long Branch, Longport, Ocean Grove, Sea Girt, Seaside Park, Ship Bottom, Spring Lake and Surf City.

About the bill

This bill would extend the provisions of the “New Jersey Smoke Free Air Act,” P.L.2005, c.383 (C.26:3D-55 et seq.), which generally prohibit smoking in indoor public places and workplaces, to apply to public beaches throughout the State.

The smoking prohibition provided for under this bill would apply to any State, county, or municipal beach, but would not apply to any parking lot that is adjacent to, but outside of, the public beach; or any area of a municipal or county beach, not exceeding 15 percent of the total area, which is designated by the municipality or county by ordinance or resolution as a smoking area.

The Department of Environmental Protection is directed to provide information and assistance to counties and municipalities, as determined to be appropriate by the Commissioner of Environmental Protection, and within the limits of resources available to the department for this purpose, to support smoke-free public beaches.

The penalties that currently apply to a person who smokes in an indoor public place or workplace, or to a person having control of the place who fails to comply with an order to enforce the smoking prohibition, in violation of the “New Jersey Smoke Free Air Act,” would apply to a comparable violation of this bill.  These include a fine of not less than $250 for the first offense, $500 for the second offense and $1,000 for each subsequent offense.  As currently provided under the “New Jersey Smoke Free Air Act,” a penalty recovered through enforcement would be paid to the State Treasury if the plaintiff is the Commissioner of Health, and to the treasury of the municipality in which the violation occurred if the plaintiff is the local board of health.  The bill provides that process for a violation may only be served by summons, and not by a summons or warrant as provided under current law.  The bill requires that the Superior Court will have exclusive jurisdiction over violations that may be issued against a State or local government entity.

The Commissioners of Health and Environmental Protection, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.) and in consultation with each other, are directed to adopt rules and regulations to effectuate the purposes of this bill.

The bill takes effect on the 180th day after enactment, but it authorizes the Commissioners of Health and Environmental Protection to take anticipatory administrative action in advance of the effective date, as necessary for the bill’s implementation.

The Bill…

Sponsored by:

Senator  STEPHEN M. SWEENEY

District 3 (Cumberland, Gloucester and Salem)

Senator  VIN GOPAL

District 11 (Monmouth)

Senator  BOB SMITH

District 17 (Middlesex and Somerset)

SYNOPSIS

Revises “New Jersey Smoke-Free Air Act” to prohibit smoking at public beaches.

CURRENT VERSION OF TEXT

As introduced.

An Act concerning smoking at public beaches, and amending and supplementing P.L.2005, c.383.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 2 of P.L.2005, c.383 (C.26:3D-56) is amended to read as follows:
2. The Legislature finds and declares that:
3. Tobacco is the leading cause of preventable disease and death in the State and the nation;
4. Tobacco smoke constitutes a substantial health hazard to the nonsmoking majority of the public;
5. Electronic smoking devices have not been approved as to safety and efficacy by the federal Food and Drug Administration, and their use may pose a health risk to persons exposed to their smoke or vapor because of a known irritant contained therein and other substances that may, upon evaluation by that agency, be identified as potentially toxic to those inhaling the smoke or vapor;
6. The separation of smoking and nonsmoking areas in indoor public places and workplaces does not eliminate the hazard to nonsmokers if these areas share a common ventilation system;
7.      The prohibition of smoking at public beaches would better preserve and maintain the natural assets of this State by reducing litter and increasing fire safety in those areas, while lessening exposure to secondhand tobacco smoke and providing for a more pleasant beach experience for the public; and

[e.]  f.  Therefore, subject to certain specified exceptions, it is clearly in the public interest to prohibit the smoking of tobacco products and the use of electronic smoking devices in all enclosed indoor places of public access and workplaces and at all public beaches.

(cf: P.L.2009, c.182, s.1)

2. Section 3 of P.L.2005, c.383 (C.26:3D-57) is amended to read as follows:
3. As used in this act:

“Bar” means a business establishment or any portion of a nonprofit entity, which is devoted to the selling and serving of alcoholic beverages for consumption by the public, guests, patrons or members on the premises and in which the serving of food, if served at all, is only incidental to the sale or consumption of such beverages.

“Cigar bar” means any bar, or area within a bar, designated specifically for the smoking of tobacco products, purchased on the premises or elsewhere; except that a cigar bar that is in an area within a bar shall be an area enclosed by solid walls or windows, a ceiling and a solid door and equipped with a ventilation system which is separately exhausted from the nonsmoking areas of the bar so that air from the smoking area is not recirculated to the nonsmoking areas and smoke is not backstreamed into the nonsmoking areas.

“Cigar lounge” means any establishment, or area within an establishment, designated specifically for the smoking of tobacco products, purchased on the premises or elsewhere; except that a cigar lounge that is in an area within an establishment shall be an area enclosed by solid walls or windows, a ceiling and a solid door and equipped with a ventilation system which is separately exhausted from the nonsmoking areas of the establishment so that air from the smoking area is not recirculated to the nonsmoking areas and smoke is not backstreamed into the nonsmoking areas.

“Electronic smoking device” means an electronic device that can be used to deliver nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, cigarillo, or pipe.

“Indoor public place” means a structurally enclosed place of business, commerce or other service-related activity, whether publicly or privately owned or operated on a for-profit or nonprofit basis, which is generally accessible to the public, including, but not limited to:  a commercial or other office building; office or building owned, leased or rented by the State or by a county or municipal government; public and nonpublic elementary or secondary school building; board of education building; theater or concert hall; public library; museum or art gallery; bar; restaurant or other establishment where the principal business is the sale of food for consumption on the premises, including the bar area of the establishment; garage or parking facility; any public conveyance operated on land or water, or in the air, and passenger waiting rooms and platform areas in any stations or terminals thereof; health care facility licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.); patient waiting room of the office of a health care provider licensed pursuant to Title 45 of the Revised Statutes; child care center licensed pursuant to P.L.1983, c.492 (C.30:5B-1 et seq.); race track facility; facility used for the holding of sporting events; ambulatory recreational facility; shopping mall or retail store; hotel, motel or other lodging establishment; apartment building lobby or other public area in an otherwise private building; or a passenger elevator in a building other than a single-family dwelling.

“Person having control of an indoor public place or workplace or a public beach” means the owner or operator of a commercial or other office building or other indoor public place from whom a workplace or space within the building or indoor public place is leased, or the person having supervisory authority over a public beach or that person’s designee, as applicable.

“Public beach” means a State, county, or municipal beach, but does not include any parking lot that is adjacent to, but outside of, the public beach.

“Smoking” means the burning of, inhaling from, exhaling the smoke from, or the possession of a lighted cigar, cigarette, pipe or any other matter or substance which contains tobacco or any other matter that can be smoked, or the inhaling or exhaling of smoke or vapor from an electronic smoking device.

“Tobacco retail establishment” means an establishment in which at least 51[%] percent of retail business is the sale of tobacco products and accessories, and in which the sale of other products is merely incidental.

“Workplace” means a structurally enclosed location or portion thereof at which a person performs any type of service or labor.

(cf: P.L.2009, c.182, s.2)

3. Section 4 of P.L.2005, c.383 (C.26:3D-58) is amended to read as follows:
4. a. Smoking is prohibited in an indoor public place or workplace or at a public beach, except as otherwise provided in this act.
5. Smoking is prohibited in any area of any building of, or on the grounds of, any public or nonpublic elementary or secondary school, regardless of whether the area is an indoor public place or is outdoors.

(cf: P.L.2005, c.383, s.4)

4. Section 5 of P.L.2005, c.383 (C.26:3D-59) is amended to read as follows:
5. The provisions of this act shall not apply to:
6. any cigar bar or cigar lounge that, in the calendar year ending December 31, 2004, generated 15[%] percent or more of its total annual gross income from the on-site sale of tobacco products and the rental of on-site humidors, not including any sales from vending machines, and is registered with the local board of health in the municipality in which the bar or lounge is located.  The registration shall remain in effect for one year and shall be renewable only if: (1) in the preceding calendar year, the cigar bar or lounge generated 15% or more of its total annual gross income from the on-site sale of tobacco products and the rental of on-site humidors, and (2) the cigar bar or cigar lounge has not expanded its size or changed its location since December 31, 2004;
7. any tobacco retail establishment, or any area the tobacco retail establishment provides for the purposes of smoking;
8. any tobacco business when the testing of a cigar or pipe tobacco by heating, burning or smoking is a necessary and integral part of the process of making, manufacturing, importing or distributing cigars or pipe tobacco;
9. private homes, private residences and private automobiles;
10. the area within the perimeter of:

(1)   any casino as defined in section 6 of P.L.1977, c.110 (C.5:12-6) approved by the Casino Control Commission that contains at least 150 stand-alone slot machines, 10 table games, or some combination thereof approved by the commission, which machines and games are available to the public for wagering; and

(2)   any casino simulcasting facility approved by the Casino Control Commission pursuant to section 4 of P.L.1992, c.19 (C.5:12-194) that contains a simulcast counter and dedicated seating for at least 50 simulcast patrons or a simulcast operation and at least 10 table games, which simulcast facilities and games are available to the public for wagering; [and]

1. research laboratories and other facilities that have been approved by the Department of Health to permit smoking for the purpose of medical research related to the health effects of smoking, in an indoor facility that is separately ventilated for the purpose of medical or scientific research that is conducted under physician supervision and has been approved by an Investigational Review Board (IRB), if the facility is used solely and exclusively for clinical research activities; and
2.   An area of a municipal or county beach, not to exceed 15 percent of the total area of the beach, which is designated by the municipality or county by ordinance or resolution as a smoking area.

(cf: P.L.2017, c.271)

5. Section 7 of P.L.2005, c.383 (C.26:3D-61) is amended to read as follows:
6. a.      The person having control of an indoor public place or workplace or a public beach shall place in every public entrance to the indoor public place or workplace or the public beach a sign, which shall be located so as to be clearly visible to the public and shall contain letters or a symbol which contrast in color with the sign, indicating that smoking is prohibited therein, except in such designated areas as provided pursuant to this act.  The sign shall also indicate that violators are subject to a fine.  The person having control of the indoor public place or workplace or the public beach shall post a sign stating “Smoking Permitted” in letters at least one inch in height or marked by the international symbol for “Smoking Permitted” in those areas where smoking is permitted.
7. The provisions of this section shall not be construed to prevent a lessee of the workplace, or space within the building or indoor public place, from enforcing the smoking restrictions
   imposed by the owner or operator of a commercial or other office building or other indoor public place.

(cf: P.L.2005, c.383, s.7)

6. (New section)  The Department of Environmental Protection is directed to provide information and assistance to counties and municipalities, as determined appropriate by the Commissioner of Environmental Protection and within the limits of resources available to the department for this purpose, to support smoke-free public beaches.

7. Section 8 of P.L.2005, c.383 (C.26:3D-62) is amended to read as follows:
8. a.    The person having control of an indoor public place or workplace or a public beach shall order any person smoking in violation of this act to comply with the provisions of this act.  A person, after being so ordered, 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.  A penalty shall be recovered in accordance with the provisions of subsections c. and d. of this section.
9. The Department of Health or the local board of health or the board, body, or officers exercising the functions of the local board of health according to law, upon written complaint or having reason to suspect that an indoor public place or workplace or a public beach covered by the provisions of this act is or may be in violation of the provisions of this act, shall, by written notification, advise the person having control of the place accordingly, and order appropriate action to be taken.  A person receiving that notice who fails or refuses to comply with the order 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.  In addition to the penalty provided herein, the court may order immediate compliance with the provisions of this act.
10. A penalty recovered under the provisions of this act shall be recovered by and in the name of the Commissioner of Health or by and in the name of the local board of health.  When the plaintiff is the Commissioner of Health, the penalty recovered shall be paid by the commissioner into the treasury of the State.  When the plaintiff is a local board of health, the penalty recovered shall be paid by the local board into the treasury of the municipality where the violation occurred.
11.  [A] The Superior Court or a municipal court shall have jurisdiction over proceedings to enforce and collect any penalty imposed because of a violation of this act if the violation has occurred within the territorial jurisdiction of the court, except that the Superior Court shall have exclusive jurisdiction over violations that occur in an indoor public place or public beach that may be issued against a State or local government entity pursuant to subsection b. of this section.  The proceedings shall be summary and in accordance with the “Penalty Enforcement Law of 1999,” P.L.1999, c.274 (C.2A:58-10 et seq.).  Process shall be in the nature of a summons [or warrant] and shall issue only at the suit of the Commissioner of Health, or the local board of health, as the case may be, as plaintiff.
12. The penalties provided in subsections a. and b. of this section shall be the only civil remedy for a violation of this act, and there shall be no private right of action against a party for failure to comply with the provisions of this act.

(cf: P.L.2012, c.17, s.331)

8. Section 9 of P.L.2005, c.383 (C.26:3D-63) is amended to read as follows:
9. 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 or at a public beach, except where smoking is prohibited by municipal ordinance under authority of R.S.40:48-1 or R.S.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.

(cf: P.L.2005, c.383, s.9)

9. (New section) The Commissioners of Health and Environmental Protection, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.) and in consultation with each other, shall adopt rules and regulations to effectuate the purposes of this act.

10. This act shall take effect on the 180th day after enactment, but the Commissioners of Health and Environmental Protection may take such anticipatory administrative action in advance thereof as shall be necessary for the implementation of this act.

STATEMENT