On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 31-2008.
The opinion of the court was delivered by: Espinosa, J.S.C. (temporarily assigned)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Sapp-Peterson and Espinosa.
Defendant owns a coffee shop and hookah bar, "Sugar Nights," in Woodbridge. It is undisputed that his patrons smoke substances made of herbs and fruit, and not tobacco, in the hookahs. He appeals from his convictions arising from four summonses that charged him with violations of the New Jersey Smoke-Free Air Act (the Act), N.J.S.A. 26:3D-55 to -64, arguing that the definition of smoking in the statute is impermissibly overbroad or vague and that the selective enforcement of the statute deprived him of his right to equal protection under the New Jersey Constitution. We find no constitutional flaw in the statute or its application to defendant but reverse in part because the evidence was insufficient to support a conviction for the first violation.
Vincent Ciuffo, the Principal Health Inspector for the Township of Woodbridge, testified that in late November 2006, defendant came into his office and stated that he wanted to open a combination hookah bar and coffee shop. Ciuffo described a hookah bar as follows:
A Hookah Bar is a place of business where they will have the communal hookahs for people to sit around and share pipefuls of either tobacco or an herb or a dried fruit or a combination of those. It's a practice from the [Middle East] which is now very popular in, particularly in college towns. It's a water pipe which is, usually sits on the floor. And more than one person can actually share the water pipe. They have their own individual tubes with their own individual mouthpieces.
He stated further that the hookahs emit smoke. Ciuffo told defendant that in April 2006, the Smoke-Free Air Act became effective and prohibited smoking inside establishments, including food establishments. He also advised defendant that he did not fall within any of the exceptions. He suggested that defendant contact the State for further clarification. Ciuffo did not hear from defendant again until January 2008, when he stated that he was ready to open the coffee shop without the hookah bar. Defendant signed off on all the inspection and other necessary forms that were required by the Health Department. After defendant opened his business, Ciuffo received reports that there was smoking in the establishment.
On the evening of February 5, 2008, Ciuffo went to defendant's shop at the direction of the Chief Health Inspector to determine if hookahs were being used. He saw two tables of customers using hookahs. Defendant was not present. Ciuffo spoke to the manager, who reached defendant by telephone. Ciuffo advised him that a summons would be issued for the violation. Defendant argued that he could have a hookah bar, that there were others in existence and he did not see any reason why he could not have one. The summons issued on this date stated that defendant committed the following offense: "As owner of Sugar Nights, 215A Avenel, did operate an illegal hookah bar in violation of [N.J.S.A.] 26:3D-55."
Ciuffo returned to defendant's shop on February 13, 2008. He observed two women smoking a hookah. Smoke was coming out of the hookah; its odor appeared to be a combination of fruit and incense. Ciuffo walked outside with defendant so that they could speak outside the presence of the customers. Defendant stated that the woman was a friend of his visiting from Egypt and that she had to smoke the hookah. Ciuffo again reminded him of the law prohibiting smoking and issued a summons that identified the offense as the illegal operation of a hookah bar in violation of N.J.S.A. 26:3D-55.
On February 21, 2008, Ciuffo returned during the day and posted a cease and desist order on the door. He returned the following evening and observed hookahs actively in use at several tables inside the shop. Ciuffo issued a third summons, which alleged that defendant "as operator of Sugar Nights, and after previous summoneses, operated a hookah bar" in violation of N.J.S.A. 26:3D-55.
On March 18, 2008, Ciuffo visited defendant's business and again observed hookahs in use. He issued a fourth summons for the operation of a hookah bar.
Ciuffo testified that on each occasion that he visited defendant's business at night, he observed smoke coming out of the hookahs, all of which were located indoors. He did not smell any tobacco smoke on any of these occasions.
Defendant's wife*fn1 produced the hookah bar's menu, which listed the flavors and prices for the substances smoked, all of which were nicotine-free. She testified that there was no tobacco in any of the products used at their business and that they did not permit smoking of cigarettes or any tobacco on the premises. She admitted that the patrons inhale smoke from the hookah and blow out the smoke, and that the hookah emits smoke when in use.
The municipal court found defendant guilty of violating the Act on the four occasions when summonses were issued: February 5, 13 and 22, 2008 and March 18, 2008. The court imposed a fine of $250 plus court costs for each of the offenses committed in February and a fine of $500 plus court costs for the March 18 offense. Defendant appealed to the Law Division. The trial court convicted defendant on each of the violations and imposed the same sentences as had been imposed in municipal court. Further enforcement was stayed pending the outcome of this appeal.
In this appeal, defendant presents the following issues for our consideration:
THE DEFINITION OF SMOKING IN N.J.S.A. 26:3D-56 ET. SEQ. IS ...