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State v. Lipka

April 7, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN LIPKA T/A SHE-KEV, INC., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 06-077.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 5, 2009

Before Judges Sapp-Peterson and Alvarez.

Defendant, Kevin Lipka, trading as She-Kev, Inc., appeals from a judgment finding him guilty of forty-one violations of the New Jersey Smoke-Free Air Act (Act), N.J.S.A. 26:3D-55 to -64, and imposing civil penalties of $39,750. Defendant was found guilty in the Roxbury Municipal Court on October 30, 2006, of thirty-five violations and was thereafter convicted of six additional violations on December 14, 2006. The judgment from which defendant now appeals is actually from the Law Division de novo trial on the record pursuant to Rule 3:23. We affirm.

The Act was adopted on January 15, 2006, but the effective date was delayed for ninety days until April 15, 2006. It prohibits smoking in indoor public places, such as Smiles II, the bar/restaurant operated by defendant at the premises where the violations occurred. N.J.S.A. 26:3D-58(a). The Act exempts from its purview any "cigar bar or cigar lounge," which is defined as a business earning "fifteen 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." N.J.S.A. 26:3D-59(a).

In order to qualify for the cigar bar or cigar lounge exemption, a business must register with the board of health in the municipality in which it is located. Ibid. Additionally, a cigar bar or lounge within a bar or other establishment must be an enclosed area with "solid walls or windows" and a separate air ventilation system. N.J.S.A. 26:3D-57.

While we were not provided with copies of exhibits, the Law Division judge described in detail the relevant correspondence between defendant and the Township of Roxbury Health Department (Health Department). The Law Division judge also made detailed oral findings of fact.

On April 13, 2006, defendant wrote to the Health Department requesting that he be supplied with the forms necessary to apply for a cigar bar exemption. In that letter, defendant purported to register Smiles II as a cigar bar or lounge in compliance with the Act. On April 20, a Health Department official, Matthew Zachok, responded by certified letter: "At no point did this department receive the necessary documentation required for you to be considered for a cigar bar or cigar lounge exemption." The letter further stated that Smiles II was registered with the Health Department as a restaurant, and that the Health Department had already received several complaints about smoking on the premises since the Act went into effect. The letter cautioned that if smoking in the premises did not "cease and desist . . . immediately," a summons would issue.

The following day, Zachok wrote again to defendant, advising that he had visited Smiles II the previous day and explained to a Smiles II employee that the bar/restaurant was not exempt from the application of the Act. In the letter, Zachok mentioned that a sign on the premises indicated that smoking was permitted, and that he had left a "no smoking" sign, which was to be posted at the entrance, with an employee.

Zachok also noted that he had witnessed a bartender smoking behind the bar. He warned defendant that he would return on April 26 and issue summonses should any violations be found.

The April 26 reinspection found that signs indicating that smoking was permitted were still posted, a patron was smoking, and a humidor had been installed between the rear door and the bathrooms. On that date, an employee claiming to be the Smiles II manager reported that the owner of the business had told her that the premises were exempt from the Act.

On April 27, 2006, the first of forty-one separate summons was issued. A subsequent investigation conducted by the Health Department revealed that the incorrect signage continued to be displayed at Smiles II, while the correct signage had never been posted.

On May 4, 2006, the date of the annual fire inspection, a fire official noted the presence of ashtrays on the bar counter and in a downstairs dressing room lounge. He found ashes and smoking materials in a garbage can inside the premises. He reported that the manager told him that the "boss said we ...


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