C.I.C. Corp. v. Township of East Brunswick

• Decision Date: 02 July 1993
• Citation: 628 A.2d 753,266 N.J.Super. 1
• Parties: C.I.C. CORPORATION, Coast Cigarette Sales, Inc., Eskin Vending Corporation, and Amusement Music Operators Association, Plaintiffs-Respondents, v. TOWNSHIP OF EAST BRUNSWICK, Defendant-Appellant,
• Court: New Jersey Superior Court — Appellate Division

Page 1

266 N.J.Super. 1

628 A.2d 753

C.I.C. CORPORATION, Coast Cigarette Sales, Inc., Eskin

Vending Corporation, and Amusement Music Operators

Association, Plaintiffs-Respondents, v. TOWNSHIP OF EAST BRUNSWICK, Defendant-Appellant,

Superior Court of New Jersey,

Appellate Division.

Argued June 1, 1993.

Decided July 2, 1993.

Bertram E. Busch, North Brunswick, for defendant-appellant (Busch and Busch, attorneys; Kenneth A. Levine and Mr. Busch, of counsel and on the brief).

Keith N. Biebelberg, Millburn, for plaintiffs-respondents (Biebelberg & Martin, Millburn, attorneys; Barry D. Maurer, West Orange, and Mr. Biebelberg, Millburn, of counsel and on the brief).

John M. Loalbo, Roseland, submitted a brief on behalf of amicus curiae Action on Smoking and Health; and amicus curiae New Jersey Group Against Smoking Pollution.

Carella, Byrne, Bain, Gilfillan, Cecchi & Stewart, Lyndhurst, submitted a brief on behalf of amicus curiae Tri-Agency Council.

Before Judges J.H. COLEMAN, ARNOLD M. STEIN and CONLEY.

The opinion of the court was delivered by

CONLEY, J.A.D.

Concerned for the health of its minor residents affected by early smoking and after evaluating information showing that many young people readily obtain cigarettes through vending machines notwithstanding the illegality of such sales, N.J.S.A. 2A:170-51, the Township of East Brunswick enacted an ordinance in July 1990 banning such machines. Plaintiffs are owners and operators of cigarette vending machines. They challenged the legality of the ordinance on the grounds of preemption and equal protection. The trial judge concluded that while a rational basis existed for the ban, the ordinance was preempted by State law. We reverse.

Ordinance 90-36 provides in pertinent part:

WHEREAS, the Surgeon General of the United States has called for a ban on the sale of cigarettes by vending machines, and

WHEREAS, the State of New Jersey has banned the sale or furnishing of cigarettes or tobacco in any form to minors under N.J.S. 2A:170-51 and,

WHEREAS, the Township of East Brunswick is unable to prevent the sale of cigarettes to minors by vending machines and no penalty has been imposed by State Statute upon minors for the purchase of cigarettes, and

WHEREAS, the Township of East Brunswick is authorized to enact ordinances not contrary to the laws of this State or of the United States as it may deem necessary and proper for the protection of persons and for the preservation of the public health, safety and welfare of the municipality and its inhabitants,

NOW, THEREFORE, BE IT RESOLVED by the East Brunswick Township Council as follows:

SECTION 1: The East Brunswick Township Council hereby establishes Chapter 68, Cigarette Vending Machines Prohibited, as a new chapter in the Code of the Township of East Brunswick.

SECTION 2: Section 68-1. In the view of the indiscriminate sales of cigarettes to minors by automatic vending machines, all cigarette vending machines are hereby prohibited in the Township of East Brunswick.

SECTION 3: Section 68-2. Penalty. Any person owning, operating, renting or permitting the use of a cigarette vending machine on premises under his or her control shall be subject to a fine of $250.00. Each day on which such a machine is owned, operated, rented or permitted on the premises, shall result in an additional fine.

This ordinance was enacted in the context of a growing national concern over ready access of young people to cigarettes and studies showing lax enforcement of laws making it illegal to sell cigarettes to minors. Compiled in May 1990, the office of Inspector General released a report on such access, stating "[e]ach day more than 3,000 children start smoking. A Journal of the American Medical Association article estimates that more than 3 million American children under age 18 consume 947 million packs of cigarettes yearly." U.S. Dep't of Health and Hum. Servs., Off. of Inspector Gen., Off. of Evaluation and Inspection, Youth Access to Cigarettes, 1 (May 1990). The report also points to vending machines as a source of unrestricted access by minors. The office of Inspector General recommended a model act which would, in addition to other measures, provide for a ban on cigarette vending machines as a way of controlling the perceived problem. U.S. Dep't of Health and Hum. Servs., Model Sale of Tobacco Products to Minors Control Act (May 24, 1990).

When East Brunswick proposed such a ban, it received information from numerous sources. The information supported the concern expressed by the office of Inspector General. For instance, Dr. John Slade, chairman of the Commission on Smoking or Health, New Jersey State Department of Health, provided the East Brunswick Township Council with statistical data that 22% of the thirteen year olds surveyed who smoked regularly indicated that vending machines were usually their source of cigarettes and provided the Council with the results from surveys performed at New Jersey high schools indicating that two-thirds of all students used vending machines to obtain cigarettes. In addition to similar comments from students and parents, the Council was also provided information by Regina Carlson of New Jersey GASP Inc., and a member of the New Jersey Commission on Smoking or Health, that teen-age smoking "is a gateway to other drug use. Ninety-five percent of high school seniors who smoke have tried other illicit drugs. Only 27% of nonsmoking seniors have tried other illicit drugs." See also New Jersey Dep't of Health, Comm. on Smoking or Health, Preventing Tobacco Dependence in New Jersey Children (Nov. 1987).

The Council considered information as well from representatives of plaintiffs raising questions as to the accuracy of the studies and surveys and presenting alternatives to a total ban on vending machines. The primary alternative urged was the use of a "remote control device" which is placed on the machine and operates such that the machine is locked and can be unlocked only by the proprietor or employee activating a remote control release mechanism. It was also suggested that constant supervision by the proprietor or employee could be required to prevent minors from using the machines as well as placing the machines in areas not ordinary accessible to minors, such as bars and taverns.

It was within the context of this information that the Council enacted Ordinance 90-36 and in doing so rejected the alternative proposals in favor of a total ban.

I.

There is no question that the East Brunswick Township Council had the power to enact Ordinance 90-36. Municipalities are broadly empowered to enact ordinances "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...." N.J.S.A. 40:48-2. Although subject to limits imposed by legislative prescription, these powers are liberally construed. N.J. Const., art. IV, § 7, p 11; Mannie Cigarette Serv., Inc. v. Town of West New York, 259 N.J.Super. 343, 347, 613 A.2d 494 (App.Div.1992).

To be sure protection of minors within the borders of East Brunswick from the perceived dangers of early smoking and illegal sale of cigarettes, affects matters of local concern. Cf. Dome Realty, Inc. v. City of Paterson, 83 N.J. 212, 226-27, 416 A.2d 334 (1980). Plaintiffs claim, however, that area has been preempted by the Legislature. The trial judge agreed, concluding that the ban was preempted by the Cigarette Tax Act, N.J.S.A. 54:40A-1 to -45, and the Unfair Cigarette Sales Act, N.J.S.A. 56:7-18 to -38. In doing so, he said:

The combination of both Acts convincingly demonstrates an existing statewide scheme to control and encourage the sale of cigarettes in multiple fashions, for the sake of imposing a tax and thereby raising revenue for state use. In the process the various layers of the enterprise are tracked through licensing. We may not like the purpose nor the methodology of this revenue measure, any more than we might applaud state funding generated from the sale of alcohol or from casino gambling. But we do not have the luxury to pretend such revenue measures were not enacted simply because we perceive some greater good. It may be argued that East Brunswick is just one community from among hundreds in New Jersey, and only a miniscule amount of taxes will be lost; but certainly many municipalities are waiting to climb on this same bandwagon of popular local legislation.

We disagree.

Preemption has been defined as a judicially-created principle based on the proposition that a municipality, which is an agent of the State, cannot act contrary to the State. Mack Paramus Co. v. Mayor of the Borough of Paramus, 103 N.J. 564, 573, 511 A.2d 1179 (1986). Its application in any given circumstance "turns upon the intention of the Legislature." Ibid.

In determining the applicability of preemption, the following factors must be considered: whether the ordinance conflicts with state law, either because of conflicting policies or operational effect; whether the state law was intended, expressly or impliedly, to be exclusive in the field; whether the subject matter reflects a need for uniformity; whether the state scheme is so pervasive or comprehensive that it precludes coexistence of municipal regulation; and whether the ordinance stands as an obstacle to the accomplishment of the full purposes and objectives of the Legislature. Overlook Terrace Mgmt. Corp. v. Rent Control Bd., 71 N.J. 451, 461-62, 366 A.2d 321 (1976). "Hence an ordinance will fall if it permits what a statute expressly forbids or forbids what a statute expressly authorizes. Even absent such evident conflict, a municipality may be unable to exercise a power it would otherwise have if the Legislature has preempted the field." Summer v. Township of Teaneck, 53 N.J. 548, 554, 251 A.2d...