Township of West Caldwell, NJ
Essex County
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Table of Contents
Table of Contents
[Ord. BH12/2/15]
This chapter may be cited as the "Smoke-Free Ordinance of the Township of West Caldwell".
[Ord. BH12/2/15]
As used in this chapter the following terms shall have the meanings indicated:
BAR
Shall mean 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 sale or the consumption of those beverages, including but not limited to, taverns, nightclubs, cocktail lounges, and cabarets.
BOARD
Shall mean the Board of Health of the Township of West Caldwell.
BUSINESS
Shall mean a sole proprietorship, partnership, joint venture, corporation, or other business entity, either for-profit or not-for-profit, includes retail establishments where goods or services are sold; professional corporations and other entities where legal, medical, dental, wholesale engineering, architectural, or other professional services are delivered; and private clubs.
CIGAR BAR
Shall mean 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
Shall mean 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
Shall mean any product containing or delivering nicotine or any other substance intended for human consumption that can be used by a person to simulate smoking through inhalation of vapor or aerosol from the product. The term includes any such device, whether manufactured, distributed, marketed, or sold as an e-cigarette, e-cigar, e-pipe, e-hookah, e-cigarillo, vape pen, or under any other product name or descriptor.
EMPLOYEE
Shall mean a person who is employed by an employer in consideration for direct or indirect monetary wages or profit, or a person who volunteers his or her services for a for-profit or non-profit entity.
EMPLOYER
Shall mean a person, business, and partnership, and association, corporation, including a municipal corporation, independent contractors, trust, or non-profit entity that employs the services of one or more individual persons.
ENCLOSED AREA
Shall mean all space between a floor and a ceiling that is bounded on at least two sides by walls, doorways, or windows, whether open or closed. A wall includes any retractable divider, garage door, or other physical barrier, whether temporary or permanent and whether or not containing openings of any kind.
HEALTH OFFICER
Shall mean the Health Officer of the Township of West Caldwell, as appointed by the Board, and his\her designated agents, officers and inspectors.
HOOKAH
Shall mean a water pipe and any associated products and devices which are used to produce fumes, smoke, and/or vapor from the burning of material including, but not limited to, tobacco, shisha, or other plant matter.
HOOKAH BAR
Shall mean any establishment, or area within an establishment, designated specifically for the smoking of tobacco products, purchased on the premises or elsewhere.
HOOKAH LOUNGE
Shall mean any establishment, or area within an establishment, designated specifically for the smoking of tobacco products, purchased on the premises or elsewhere.
INDOOR PUBLIC PLACE
Shall mean 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.
LICENSE
Shall mean a certificate issued by the Health Officer to a proprietor under the provisions hereof.
PLACE OF EMPLOYMENT
Shall mean an area under the control of a public or private employer, including, but not limited to, work areas, private offices, employee lounges, restrooms, conference rooms, meeting rooms, classrooms, employee cafeterias, hallways, construction sites, temporary offices, and vehicles. A private residence is not a "place of employment" unless it is used as a child care, adult day care, or health care facility.
PLAYGROUND
Shall mean any park or recreational area designed in part to be used by children that has play or sports equipment installed or that has been designated or landscaped for play or sports activities, or any similar facility located on public or private school grounds or on Township of West Caldwell grounds.
PRIVATE CLUB
Shall mean an organization, whether incorporated or not, which is the owner, lessee, or occupant of a building or portion thereof used exclusively for club purposes at all times, which is operated solely for a recreational, fraternal, social, patriotic, political, benevolent, or athletic purpose, but not for pecuniary gain. The affairs and management of the organization are conducted by a board of directors, executive committee, or similar body chosen by the members at an annual meeting. The organization has established bylaws and/or a constitution to govern its activities. The organization has been granted an exemption from the payment of Federal income tax as a club under 26 U.S.C. Section 501.
PUBLIC EVENT
Shall mean an event which is open to and may be attended by the general public, including but not limited to, such events as: concerts, fairs, farmers' markets, festivals, parades, performances, political rallies and any other gatherings, regardless of any fee or age requirement.
PUBLIC PARK OR PARK
Shall be designated as those areas which appear on the Municipal and/or County maps prepared by Omland Engineering and adopted by Township Ordinance on June 11, 2009.
PUBLIC PLACE
Shall mean an area to which the public is invited or in which the public is permitted, including but not limited to, banks, bars, educational facilities, gambling facilities, health care facilities, hotels and motels, laundromats, parking structures, public transportation vehicles and facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, shopping malls, sports arenas, theaters, and waiting rooms. A private residence is not a "public place" unless it is used as a child care, adult day care, or health care facility.
RECREATIONAL AREA
Shall mean any public or private area open to the public for recreational purposes, whether or not any fee for admission is charged, including but not limited to: athletic fields, beaches, fairgrounds, gardens, golf courses, parks, plazas, skate parks, swimming pools, and trails.
RESTAURANT
Shall mean an eating establishment, including but not limited to, coffee shops, cafeterias, sandwich stands, and private and public school cafeterias, which gives or offers for sale food to the public, guests, or employees, as well as kitchens and catering facilities in which food is prepared on the premises for serving elsewhere. The term "restaurant" shall include a bar area within the restaurant.
SCHOOL OR SCHOOL PROPERTY
Shall be designated as those buildings and/or facilities which appear on the Municipal and/or County maps prepared by Omland Engineering and adopted by Township Ordinance on June 11, 2009.
SERVICE LINE
Shall mean an indoor or outdoor line in which one or more persons are waiting for or receiving service of any kind, whether or not the service involves the exchange of money, including but not limited to: ATM (Automatic Teller Machine) lines, concert lines, food vendor lines, movie ticket lines, and sporting event lines.
SHOPPING MALL
Shall mean an enclosed or unenclosed public walkway or hall area that serves to connect retail or professional establishments.
SMOKING
Shall mean inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated matter or substance which contains tobacco, plant product or any other matter that can be smoked which is intended for inhaling and exhaling of smoke, including hookahs and marijuana, whether natural or synthetic, in any manner or in any form. "Smoking" also includes the use of an electronic smoking device which creates an aerosol or vapor, in any manner or in any form, or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking in this Article.
SPORTS ARENA
Shall mean a place where people assemble to engage in physical exercise, participate in athletic competition, or witness sports or other events, including sports pavilions, stadiums, gymnasiums, health spas, boxing arenas, swimming pools, roller-skating rinks, roller blading rinks, ice rinks, bowling alleys, and other private facilities such as dojos, yoga studios and palates studios.
TOBACCO RETAIL ESTABLISHMENT (TRE)
Shall mean an establishment in which at least 51% of retail business is the sale of tobacco products and accessories, and in which the sale of other products is merely incidental.
VAPOR/VAPE SHOPS AND/OR STORE
Is a retailer that either devotes 25% or more of floor area or display area to, or derives 75% or more of gross sales receipts from, the sale or exchange of electronic smoking devices and/or electronic smoking device paraphernalia.
WORKPLACE
Shall mean a structurally enclosed location or portion thereof at which a person performs any type of service or labor.
[Ord. BH12/2/15]
All enclosed areas, including buildings and vehicles owned, leased, or operated by the Township of West Caldwell, as well as all outdoor property adjacent to such buildings and under the control of the Township of West Caldwell, shall be subject to the provisions of this Smoke-Free Code.
[Ord. BH12/2/15]
a. 
Smoking shall be prohibited in all enclosed public places within the Township of West Caldwell, including but not limited to, the following places:
1. 
Galleries, libraries, and museums.
2. 
Areas available to the general public in businesses and non-profit entities patronized by the public, including but not limited to, banks, laundromats, professional offices, and retail service establishments.
3. 
Bars.
4. 
Bingo facilities.
5. 
Child care and adult day care facilities.
6. 
Places of assembly.
7. 
Educational facilities, both public and private.
8. 
Elevators.
9. 
Health care facilities.
10. 
Lobbies, hallways, and other common areas in apartment buildings, condominiums, retirement facilities, nursing homes, and other multiple-unit residential facilities.
11. 
Polling places.
12. 
Restaurants.
13. 
Restrooms, lobbies, reception areas, hallways, and other common-use areas.
14. 
Retail stores.
15. 
Rooms, chambers, places of meeting or public assembly, including school buildings, under the control of an agency, board, commission, committee or council of the Township of West Caldwell or a political subdivision of the State, to the extent the place is subject to the jurisdiction of the Township of West Caldwell.
16. 
Service lines.
17. 
Shopping malls.
18. 
Sports venues, including enclosed places in outdoor venues.
19. 
Theaters and other facilities primarily used for exhibiting motion pictures, stage dramas, private facilities such as dojos, yoga studios, lectures, musical recitals, or other similar performances.
[Ord. BH12/2/15]
a. 
Smoking shall be prohibited in all enclosed areas of places of employment without exception. This includes, without limitation, common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, restrooms, vehicles, and all other enclosed facilities.
b. 
This prohibition on smoking shall be communicated to all existing employees by the effective date of this code and to all prospective employees upon their application for employment.[1]
[1]
Editor's Note: Chapter BH14 was adopted December 2, 2015.
[Ord. BH12/2/15]
Smoking shall be prohibited in all private clubs.
[Ord. BH12/2/15]
a. 
Smoking shall be prohibited in the following outdoor places:
1. 
Within a distance of 25 feet outside entrances, operable windows, and ventilation systems of enclosed areas where smoking is prohibited, so as to prevent tobacco smoke from entering those areas. This includes, but is not limited to, all outdoor property and buildings owned, leased, or operated by the Township of West Caldwell and that is under the control of the Township of West Caldwell.
2. 
During any scheduled recreational activities in public spaces and Township parks, including, but not limited to, all outdoor playgrounds.
3. 
In, and within 15 feet of, all outdoor public transportation stations, platforms, and shelters under the authority of the Township of West Caldwell.
4. 
In outdoor common areas of apartment buildings, condominiums, retirement facilities, nursing homes, and other multiple-unit residential facilities, except in designated smoking areas, not to exceed 25% of the total outdoor common area, which must be located at least 25 feet outside entrances, operable windows, and ventilation systems of enclosed areas where smoking is prohibited.
[Ord. BH12/2/15]
a. 
Notwithstanding any other provision of this Smoke-Free Code to the contrary, smoking shall not be prohibited in private automobiles and private homes or residences, unless the private home or residence used as a childcare, adult day care, or health care facility.
b. 
Notwithstanding any other provision of this Smoke-Free Code to the contrary, the person having control of a hotel, motel or other lodging establishment may permit smoking in up to 20% of its guest rooms. However, nothing in this section shall be construed to require a hotel, motel or other lodging establishment to provide a nonsmoking room to a guest if all the designated nonsmoking rooms are occupied.
[Ord. BH12/2/15]
Notwithstanding any other provision of this Smoke-Free Code, an owner, operator, manager, or other person in control of an establishment, facility, or outdoor area may declare that entire establishment, facility, or outdoor area as a nonsmoking place. Smoking shall be prohibited in any place in which a sign conforming to the requirements of Section BH14-10 is posted.
[Ord. BH12/2/15]
a. 
The owner, operator, manager, or other person in control of a place of employment, public place, private club, or residential facility where smoking is prohibited by this Smoke-Free Code shall:
1. 
Clearly and conspicuously post "No Smoking" signs or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) in that place. Signs to include the prohibition of electronic smoking devices.
2. 
Clearly and conspicuously post at every entrance to that place a sign stating that smoking is prohibited or, in the case of outdoor places, clearly and conspicuously post "No Smoking" signs in appropriate locations as determined by the Township of West Caldwell Department of Health, private facilities such as dojos, yoga studios or an authorized designee.
3. 
The sign shall also indicate that violators are subject to a fine.
4. 
Remove all ashtrays from any area where smoking is prohibited by this Smoke-Free Code, except for ashtrays displayed for sale and not for use on the premises.
5. 
The person having control of the indoor public place or workplace 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.
6. 
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.
[Ord. BH12/2/15]
a. 
An establishment that is an indoor public place or a workplace that intends to claim that the establishment is exempt from the Smoke-Free Code as a tobacco retail establishment within the meaning of N.J.S.A. 26:3D-57 and 59 shall file, by April 15 of each year, the form of notice provided in Appendix A incorporated herein by reference, with the local health agency with jurisdiction over the municipality in which the establishment is located.[1]
1. 
The information contained in the notice required pursuant to paragraph a above, shall be subject to reporting to and auditing by the Division of Taxation of the New Jersey Department of the Treasury.
[1]
Editor's Note: Appendix A of Ord. BH:12/2/15 is on file in the Township Offices.
[Ord. BH12/2/15]
a. 
With respect to an establishment that otherwise qualifies as a tobacco retail establishment, if the establishment is within or part of an indoor public place or a workplace, such as a retail store within a shopping mall, the exemption provided at N.J.S.A. 26:3D-59b shall not apply to the establishment unless the establishment is enclosed by solid walls or windows, a ceiling, and a solid door, and equipped with a ventilation system that is separately exhausted from the indoor public place or workplace in which the tobacco retail establishment is located, so that air from the tobacco retail establishment is not recirculated to the indoor public place or workplace and smoke is not back-streamed into the indoor public place or workplace, and provided that:
1. 
The solid door of the tobacco retail establishment remains closed at all times except when the door is in use for entry to and egress from the tobacco retail establishment. The use of a self-closing door is recommended for this purpose.
2. 
The ventilation system of the tobacco retail establishment at all times is maintained in operable condition to ensure that air from the tobacco retail establishment is separately exhausted from and not recirculated to the nonsmoking areas of the indoor public place or workplace in which the tobacco retail establishment is located, and that smoke is not back-streamed into the nonsmoking areas; and
3. 
The ventilation system shall be maintained in an operable condition to ensure that air from the tobacco retail establishment does not cause a public health nuisance (odor) to the public.
[Ord. BH12/2/15]
a. 
Except as provided in paragraph b of this section, smoking inside a tobacco retail establishment is prohibited.
b. 
Smoking (tasting) inside a tobacco retail establishment is only for prepurchase sampling of a cigar or other expensive tobacco product, prior to making a multi-unit purchase. Smoking (tasting) inside a tobacco retail establishment shall be limited to no more than two minutes prior to making a multi-unit purchase from the tobacco retail establishment.
c. 
Seating, chairs, TVs, food/beverage menus and signage that condones continued smoking beyond prepurchase sampling.
d. 
Smoking in exterior areas that can result in migration, seepage, or recirculation of smoke to an indoor public place or a workplace at which smoking is prohibited. As such, all outdoor smoking shall be limited to 25 feet outside entrances, operable windows, and ventilation systems of enclosed areas.
e. 
Private parties, food or drink, card games or gambling, game of chance, outdoor seating, and alcoholic beverage.
[Ord. BH12/2/15]
a. 
Upon reviewing an executed form of Notice and any supporting documentation or information an entity submits pursuant to N.J.A.C. 8:6-4.1, the West Caldwell Health Department requires the entity to provide the West Caldwell Health Department and any experts retained by the West Caldwell Health Department, with access to inspect one or more of the following:
1. 
Records of sales of tobacco products and accessories, and records of sales of other products; and
2. 
With respect to an establishment that is within or part of an indoor public place or a workplace:
(a) 
The physical configuration of the establishment at which the proposed exempt tobacco retail establishment is located; and
(b) 
The ventilation systems at the establishment.
b. 
The West Caldwell Health Department shall schedule any inspections it may require pursuant to paragraph a., above, so that the inspections occur within 20 business days of West Caldwell Health Department's receipt of a completed notice and supporting documentation.
[Ord. BH12/2/15]
a. 
No proprietor shall operate a tobacco retail establishment in the Township of West Caldwell unless such proprietor has registered the tobacco retail establishment with the Board of Health and has received a license from the Health Officer.
b. 
A person purchasing a tobacco retail establishment after the effective date of this chapter shall apply for a new license no later than 10 days prior to commencing operation under new ownership. Operators of licensed tobacco retail establishment are required to notify the Board of Health of the impending sale of the tobacco retail establishment no later than 30 days prior to the sale.[1]
[1]
Editor's Note: Chapter 14 was adopted December 2, 2015.
c. 
All licenses for a tobacco retail establishment shall be renewed by January 31, each year of operation.
[Ord. BH12/2/15]
a. 
For a retail establishment, the fee for review and processing of Notice of Claim of Exemption of Tobacco shall be $235;
b. 
To renew a license, the fee shall be $200.
[Ord. BH12/2/15]
Any use not specifically permitted in a zone district established by this chapter is specifically prohibited for that district, and more particularly the following uses and activities and related or similar uses and activities are prohibited on every and all properties in the Township of West Caldwell:
a. 
Cigar bar or cigar lounge.
b. 
"Hookah" bar or lounge.
c. 
Vape shops and
d. 
E-liquid companies.
[Ord. BH12/2/15]
This Smoke-Free Code shall be enforced by the Health Officer or their designee, Township Administrator, the West Caldwell Police Department and any other County or State official having control over these types of establishments.
[Ord. BH12/2/15]
a. 
A person having control of an indoor public place or workplace shall order a person smoking in violation of the Code and this chapter (person smoking illegally) to comply with the Code and this chapter, and may elect to provide the person smoking illegally with a copy of the notice provided at Appendix B, incorporated herein by reference.[1]
[1]
Editor's Note: Appendix B of Ord. BH:12/2/15 is on file in the Township offices.
b. 
If, after having been ordered to comply with the Code and this chapter in accordance with paragraph a., above, a person smoking illegally continues to violate the Code and this chapter, the person having control of the indoor public place or workplace:
1. 
Shall order the departure and removal of the person smoking illegally from the indoor public place or workplace; and
2. 
In the discretion of the person having control of the indoor public place or workplace, s/he may request the assistance of law enforcement or peace officers with jurisdiction over the indoor public place or workplace to accomplish this departure and removal.
c. 
A person may file a complaint against a person smoking illegally in accordance with N.J.S.A. 26:3D-62 by:
1. 
Contacting the local health agency with jurisdiction over the indoor public place or workplace and by adhering to complaint procedures each local health agency shall establish;
2. 
Filing a complaint directly with the municipal court with jurisdiction over the establishment, or
3. 
Filing the form of complaint at Appendix C, incorporated herein by reference, with the Indoor Environments Program.[2]
[2]
Editor's Note: Appendix C of Ord. BH:12/2/15 is on file in the Township offices.
d. 
In addition to the fines and penalties listed in Section BH14-15: Fines for Violations, this section shall not be construed to impair the ability of Township of West Caldwell Police Department or Health Department with jurisdiction to charge a person under any other applicable law, including N.J.S.A. 2C:33-13.
[Ord. BH12/2/15]
a. 
Any person may file a complaint against a person having control of an indoor public place or workplace who violates or fails or refuses to comply with or enforce the Smoke-Free Code and this chapter by:
1. 
Contacting the local health agency with jurisdiction over the indoor public place or workplace and by adhering to complaint procedures each local health agency shall establish;
2. 
Filing a complaint directly with the municipal court with jurisdiction over the establishment, or
3. 
Filing the form of complaint at Appendix C, with the New Jersey Department of Health Indoor Environments Program.
[Ord. BH12/2/15]
a. 
A person may submit an anonymous request for the performance of an investigation of an indoor public place or workplace for alleged violation of, or failure or refusal to comply with or enforce the Smoke-Free Code and this chapter by:
1. 
Contacting the local health agency with jurisdiction over the indoor public place or workplace and by adhering to anonymous investigation request procedures each local health agency shall establish; or
2. 
Filing the form of request for investigation at Appendix D incorporated herein by reference, with the Indoor Environments Program.[1]
[1]
Editor's Note: Appendix D of Ord. BH:12/2/15 is on file in the Township offices.
b. 
An anonymous request for investigation shall not be evidence of a violation of, or a failure or refusal to comply with or enforce the Smoke-Free Code and this chapter.
[Ord. BH12/2/15]
a. 
A person having control of an establishment shall permit full access to the establishment, for the purposes of examination, inspection, investigation, and enforcement of the Smoke-Free Code and this chapter, to:
1. 
Representatives of a local health agency with jurisdiction over the establishment;
2. 
Representatives of the NJDOH; and
3. 
Any experts retained by, and at the expense of, the local health agency of the NJDOH Indoor Environments Program.
[Ord. BH12/2/15]
a. 
Pursuant to N.J.S.A. 26:3D-62, fines for violations of the Smoke-Free Code and this chapter are as follows:
1. 
Not less than $250 for a first offense;
2. 
Not less than $500 for a second offense; and
3. 
Not less than $1,000 for each subsequent offense.
b. 
In addition to these fines which may be assessed against an indoor public place or workplace covered by the provisions of this section where smoking is occurring, the court may order immediate compliance with the provisions of this section.