Sparroween, LLC v. Twp. of W. Caldwell

• Decision Date: 14 November 2017
• Docket Number: DOCKET NO. A–4083–15T1
• Parties: SPARROWEEN, LLC d/b/a Cigar Emporium and Richard Yanuzzi, Plaintiffs–Appellants, 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.
• Court: New Jersey Superior Court — Appellate Division

452 N.J.Super. 329
173 A.3d 1097

SPARROWEEN, LLC d/b/a Cigar Emporium and Richard Yanuzzi, Plaintiffs–Appellants,
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.

DOCKET NO. A–4083–15T1

Superior Court of New Jersey, Appellate Division.

Argued telephonically October 3, 2017
Decided November 14, 2017

Steven J. Martino, Nutley, 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, Cedar Grove, attorneys; Juan C. Fernandez, of counsel; Anthony D. Capasso and Michael Garcia, on the brief).

Before Judges Reisner,¹ Gilson, and Mayer.

The opinion of the court was delivered by

GILSON, J.A.D.

452 N.J.Super. 332

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 We affirm because the ordinance is valid and is not superseded by the Smoke–Free Act.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

452 N.J.Super. 333

related accessories. The remainder of the store consists of seating areas for customers.

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

173 A.3d 1099

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]."

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

452 N.J.Super. 334

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.

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,

452 N.J.Super. 335

on March 21, 2016, plaintiffs filed an

173 A.3d 1100

order to show 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...